Ohio Regulatory Program, 72947-72952 [2010-29916]
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Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations
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remaining foreign and domestic
laboratories prior to the implementation
of the Consumer Product Safety
Improvement Act.) CSPC staff visited
the following laboratories:
(1) Underwriters Laboratories (UL), in
Northbrook, IL;
(2) Stork Twin City Testing
Corporation, in St. Paul, MN;
(3) Govmark Organization, in
Farmingdale, NY;
(4) SGS US Testing, in Tulsa, OK;
(5) Southwest Research Institute, in
San Antonio, TX;
(6) Intertek, in Elmendorf, TX; and
(7) Chilworth, in Kelso, WA.
CPSC staff has confidence that these
laboratories can conduct the tests
required by the mattress Standard
properly because of these field visits
and also on the basis of our review of
test results submitted to the CPSC since
2007, and, in some instances,
verification of the test results by our
own independent testing of mattresses
built from prototypes tested by these
laboratories. Therefore, we will accept
children’s product certifications based
on third party conformity assessment
body testing by any of the seven
laboratories listed above provided that:
• The laboratory will be ISO/IEC
17025 accredited by an accreditation
body that is a signatory to the ILAC–
MRA, and the accreditation scope will
expressly include testing to 16 CFR part
1632 and/or 1633 by November 16,
2010;
• Testing was conducted on or after
July 1, 2007, but not later than
November 16, 2010; and
• The test results show compliance
with the applicable current standards
and/or regulations.
C. The Request for an Extended
Compliance Period
Both the ISPA and the Springs
Creative Products Group sought an
additional one year for manufacturers to
comply with the third party testing
requirement. Both referred to costs and
to the cigarettes to be used in the tests.
We decline to extend the time by
which manufacturers must engage in
third party testing. We believe that our
revised position regarding our ‘‘Limited
Acceptance of Children’s Product
Certifications Based on Third Party
Conformity Assessment Body Testing
Prior to the Commission’s Acceptance of
Accreditation’’ substantially reduces or
eliminates the need to retest products.
More importantly, however, we note
that section 14(a)(3)(F) of the CPSA
expressly declares that:
If the Commission determines that an
insufficient number of third party conformity
assessment bodies have been accredited to
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permit certification for a children’s product
safety rule * * * the Commission may
extend the deadline for certification to such
rule by not more than 60 days.
Thus, the conditions set forth in section
14(a)(3)(F) of the CPSA have not been
met. We do not have information
suggesting that there are an insufficient
number of third party conformity
assessment bodies to conduct tests
pursuant to 16 CFR parts 1632 and/or
1633. While we recognize that third
party testing may present economic
issues for certain manufacturers as
described in the ISPA submissions and
subsequent meetings, section 14(a)(3)(F)
of the CPSA does not authorize us to
consider cost or the past or present state
of the national economy as reasons for
extending the deadline for certification.
Additionally, the statute specifically
allows for extension ‘‘not more than 60
days’’; therefore, the one-year extension
sought by the ISPA and Springs Creative
Product Group would not be possible
under section 14(a)(3)(F) of the CPSA.
Dated: November 19, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety
Commission.
[FR Doc. 2010–29861 Filed 11–26–10; 8:45 am]
BILLING CODE 6355–01–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 935
[OH–253–FOR; Docket ID OSM–2009–0001]
Ohio Regulatory Program
Office of Surface Mining
Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of
amendment.
AGENCY:
We are approving an
amendment to the Ohio regulatory
program (the ‘‘Ohio program’’)
regulations under the Surface Mining
Control and Reclamation Act of 1977
(SMCRA or the Act). The amendment
that we are approving involves changes
to Ohio’s internal and procedural rules
arising from a five-year review of the
rules. The changes relate to practice and
procedures before the reclamation
commission, including definitions,
commission meetings, appearance and
practice before the commission; appeals
to the reclamation commission; filing
and service of papers; temporary relief;
responsive pleadings; discovery;
motions; pre-hearing procedures; notice
SUMMARY:
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of hearings and continuance of hearings;
site views and location of hearings;
conduct of evidentiary hearings; reports
and recommendations of the hearing
officer; and decisions of the
commission.
DATES: Effective Date: This rule is
effective November 29, 2010.
FOR FURTHER INFORMATION CONTACT:
George Rieger, Chief, Pittsburgh Field
Division, Columbus Office, Office of
Surface Mining Reclamation and
Enforcement, Telephone: (614) 416–
2238, e-mail: grieger@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program
II. Description and Submission of the
Amendment
III. OSM’s Findings
IV. Summary and Disposition of Comments
V. OSM’s Decision
VI. Procedural Determinations
I. Background on the Ohio Program
Section 503(a) of the Act permits a
State to assume primacy for the
regulation of surface coal mining and
reclamation operations on non-Federal
and non-Indian lands within its borders
by demonstrating that its State program
includes, among other things, ‘‘a State
law which provides for the regulation of
surface coal mining and reclamation
operations in accordance with the
requirements of the Act * * *; and
rules and regulations consistent with
regulations issued by the Secretary
pursuant to the Act.’’ See 30 U.S.C.
1253(a)(1) and (7).
You can find background information
on the Ohio program, including the
Secretary’s findings, the disposition of
comments, and conditions of approval
in the August 16, 1982, Federal Register
(47 FR 34688). You can also find later
actions concerning Ohio’s program and
program amendments at 30 CFR 935.11,
935.12, 935.15, and 935.16.
II. Description and Submission of the
Amendment
By letter dated January 22, 2009, and
received on January 23, 2009,
(Administrative Record No. OH–2188–
01), Ohio sent us an amendment to its
program under SMCRA (30 U.S.C. 1201
et seq.). This amendment includes
revisions to its regulations (Ohio
Administrative Code).
Pursuant to Ohio Revised Code
119.032, all State agencies must review
their internal and procedural rules every
five years. In response to this
requirement, the Ohio Reclamation
Commission reviewed its procedural
rules. The Commission’s procedural
rules are found at Ohio Administrative
Code 1513–3–01 through 1513–3–22.
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This amendment contains the changes
made to the Ohio Administrative Code
as a result of this review. Changes relate
to practice and procedures before the
reclamation commission, including
definitions; commission meetings;
appearance and practice before the
commission; appeals to the reclamation
commission; filing and service of
papers; temporary relief; responsive
pleadings; discovery; motions; prehearing procedures; notice of hearings
and continuance of hearings; site views
and location of hearings; conduct of
evidentiary hearings; reports and
recommendations of the hearing officer;
and decisions of the commission. These
changes are identified below, with
additions italicized and deletions
bracketed:
1513–3–01: Definitions.
(N) ‘‘Regular business hours’’ for the
reclamation commission means 10:00
a.m. to 6:00 p.m. Monday through
Friday, except for State holidays or
other days in which offices of the
government of the State of Ohio are
permitted to close due to weather, safety
or other unforeseeable events which
present a risk to the public or to the
commission employees. In the event of
the absence of the office staff, contact
information for the chairman and vicechairman of the commission will be
prominently posted at the commission
offices.
[(N)](O) ‘‘Rules of the reclamation
commission’’ means rules 1513–3–01 to
1513–3–22 of the Administrative code
and shall apply to appeals filed under
both Chapters 1513 and 1514. of the
Revised code, unless specifically
provided otherwise.
1513–3–02: Internal regulations.
(B) Four members constitute a
quorum, and no action of the
commission shall be valid unless it has
the concurrence of at least four
members. Where, in rendering a
decision, a concurrence of at least four
commission members is not obtained,
the existing record of proceedings may
be submitted to any absent commission
member, who will be permitted to
participate in the rendering of the
decision. [at a subsequent commission
meeting.]
1513–3–02: Internal regulations.
(D) Pursuant to section 1513.05 of the
Revised code, the reclamation
commission shall elect [may appoint] a
secretary, who shall perform such duties
as the commission prescribes,
including:
1513–3–02: Internal regulations.
(D)(4) Providing notice of all public
meetings [hearings] of the reclamation
commission in accordance with the
following procedures:
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(a) Any person may determine the
time and place of regularly-scheduled
public meetings [hearings or the time
and place of any temporary relief
hearings] by contacting the office of the
reclamation commission during regular
business hours;
(b) Upon request, any person may
obtain advance notice of all regularlyscheduled public meetings [hearings] by
supplying the office of the reclamation
commission with stamped, selfaddressed envelopes. The office will
mail to such person a notice of the time
and place of meetings [hearings] at least
four calendar days before the meeting
[hearing] is scheduled; [unless the
hearing is a temporary relief hearing;]
(c) The reclamation commission shall
provide the office of the reclamation
commission with the time and place of
meetings [hearings] requiring public
notice under the provisions of this rule
within sufficient time to enable the
office to comply with the provisions of
this rule.
(d) The time and location for
commission meetings shall be
announced in the Hannah Report
published by Rotunda, Inc.
1513–3–02: Internal regulations.
(H) Any [The] transcript [or recording]
of a [any] proceeding before the
commission, if filed with the
commission [shall be the property of the
commission and] shall be made
available for reproduction upon
application to the commission and
payment of reproduction costs.
(I) Issuance of subpoenas.
(1) Upon request of a party, or at the
initiative of the commission, the
commission shall issue subpoenas ad
testificandum or duces tecum.
1513–3–03: Appearance and practice
before the commission.
(C) Except as prohibited by section
4705.01 of the Revised code, any party
may appear on his own behalf or may
be represented by an attorney at law
admitted to practice before the Supreme
Court of Ohio, or by an attorney
admitted to practice by the commission
pursuant to a motion to appear pro hac
vice. [In the absence of an attorney, a
party may represent itself, a partnership
may be represented by any of its
members, a corporation or association
may be represented by any of its officers
and any governmental unit may be
represented by an employee offering
proof of authority.]
1513–3–04: Appeals to the
reclamation commission.
(B) A notice of appeal must:
(7) Pursuant to section 1513.13 of the
Revised Code, identify [Identify] the
grounds upon which review is being
sought, the manner in which appellant
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is aggrieved or adversely affected by the
action of the chief of the division of
mineral resources management and the
relief sought on appeal;
1513–3–05: Filing and service of
papers.
(H) If papers filed with the
commission cite case law as authority in
support of argument, the filing must
include a copy of the case law cited and
must refer to the page number or
paragraph on which the relevant
language is found.
1513–3–08: Temporary Relief.
(F) The decision of the chairman of
the reclamation commission to grant or
deny temporary relief may be appealed
to the [full] commission, including the
chairman who decided temporary relief,
within thirty days after the chairman’s
issuance of the decision in accordance
with the provisions of section 1513.13
of the Revised Code. The [full]commission may confine its review to
the record developed at the temporary
relief hearing conducted by the
chairman. The [full] commission shall
affirm the decision of the chairman,
unless it determines that the chairman’s
decision is arbitrary, capricious, or
otherwise inconsistent with law.
1513–3–09: Responsive pleadings.
(B) Unless the commission orders
otherwise, the party ordered to file a
response pursuant to this rule shall
have ten days from the issuance of the
commission’s order to make such filing.
[(B](C) Failure to respond when
ordered may be treated as a failure to
appear at hearing.
1513–3–10: Discovery.
(C) Discovery shall be conducted in
accordance with the procedural
provisions of the ‘‘Ohio Rules of Civil
Procedure.’’ Discovery may include oral
depositions, written interrogatories to
parties, inspection of premises, requests
for admission, and inspection of
documents. [not privileged.]
1513–3–11: Motions.
(A) Except for oral motions which
must be made in proceedings on the
record, or where the commission
otherwise directs, any motion made to
the reclamation commission shall:
(4) Be filed with the commission and
served upon all parties to the
proceeding at least ten [five] days in
advance of the hearing, unless the
movant demonstrates that unusual
circumstances exist justifying an
exception to this rule.
1513–3–11: Motions.
(C) Motions for reconsideration of any
decision of the commission shall be
made in writing within ten [fourteen]
days after the issuance of the
commission’s decision. A motion for
reconsideration shall state with
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particularity the grounds on which it is
based. The filing of a motion for
reconsideration does not extend the
time for filing a notice of appeal in the
appellate court.
1513–3–11: Motions.
(E) In compliance with the
requirements of 1513–3–13(C)(2),
motions for continuance of a hearing
must be filed with the reclamation
commission and served upon all parties
to a proceeding at least fourteen days in
advance of a hearing.
[(E)](F) Unless the commission orders
otherwise, any party to a proceeding
shall have ten days from service of the
motion or until hearing, whichever is
earlier, to file a response to a motion.
[(F)](G) Failure to make a timely
motion or to file a statement in response
to a motion may be construed as a
waiver of objection.
1513–3–12: Pre-hearing procedures.
(A) The reclamation commission, or
its hearing officer, may schedule and
hold pre-hearing conferences for
settlement or simplification of the issues
in any appeal.
(B) Whenever a pre-hearing
conference is held, the commission, or
its hearing officer, may issue an order
which recites the matters discussed, the
agreements reached, and the rulings
made at the pre-hearing conference.
(C) The commission, or its hearing
officer, may require the filing of a prehearing statement by the parties to an
appeal.
1513–3–13: Notice of hearings and
continuance of hearings.
(C) Continuance of scheduled
hearings.
(2) Motions for continuance of a
hearing must be filed with the
reclamation commission and served
upon all parties to a proceeding at least
fourteen [five] days in advance of a
hearing.
(3) Motions for continuance made less
than fourteen [five] days before hearing
or at hearing shall be granted only upon
demonstration that an extraordinary
situation exists which could not have
been anticipated and which would
justify the granting of a continuance.
1513–3–14: Site views and location of
hearings.
(A) Site views.
(2) Subject to any applicable safety
requirements, the [The] commission
may, upon reasonable notice and at
reasonable times, inspect any site or
other premises when the commission is
of the opinion that such a viewing
would have a beneficial value in any
matter pending before the commission.
(3) [Unless the right to a site view is
statutorily prescribed, a] A quorum of
commission members need not attend a
site view.
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(4) All parties shall have prior notice
of a site view and shall have the right
to be present. Parties shall be informed
of any safety requirements prior to the
site view. The commission may limit the
number of persons, which may
accompany a party at a site view.
1513–3–16: Conduct of evidentiary
hearings.
(E) Written testimony.
(2) The use of a deposition in lieu of
the [dependent’s] deponent’s oral
testimony at hearing shall be allowed
under the same provisions as are
articulated in rule 32 of the ‘‘Ohio Rules
of Civil Procedure.’’ A party desiring to
use a deposition, or any designated part
thereof, at hearing shall file the
deposition with the commission and
serve written notice to every other party
at least five days prior to hearing.
(F) Witnesses.
(2) The commission may require each
party in an appeal to identify prior to
the commencement of a hearing each
person who is or may be present and
[in] his interest or who will or may be
a witness for his cause in the appeal.
(G) If the appellant fails to appear
personally or by counsel or other
authorized representative at a hearing
scheduled after being duly notified of
the hearing by the mailing of a notice of
hearing to such party’s last known
address, and if good cause for such
failure to appear [appeal] is not shown,
the commission shall dismiss the
appeal.
(I) The reclamation commission may
order the parties to a proceeding to
submit post-hearing briefs or proposed
findings of fact and conclusions of law
at a time designated by the commission,
on issues raised on the appeal or upon
possible errors or omissions in the
record or on any issues as the
commission in its discretion shall
determine. The commission may also
order the parties to submit written
closing arguments or proposed findings
of fact and conclusions of law at the
conclusion of hearing.
1513–3–18: Reports and
recommendations of the hearing officer.
(F) Any party to a proceeding may
have [seven] fourteen days from service
of the objections to the report and
recommendation of the hearing officer
to file a response.
1513–3–19: Decisions of the
commission.
(A) All decisions of the commission
shall [incorporate] set forth:
(1) Findings of fact;
(2) Conclusions of law; and
(3) An order granting or denying
relief.
1513–3–19: Decisions of the
commission.
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(F) Remission of prepaid civil penalty
assessments.
(1) If a review of a civil penalty
assessment results in an order reducing
or eliminating a civil penalty, the
reclamation commission shall remit the
funds to the appellant in accordance
with division [(F)](E) of section 1513.02
of the Revised Code.
III. OSM’s Findings
We are approving the amendment
request under SMCRA and the Federal
regulations at 30 CFR 732.15 and
732.17. Changes for which no findings
are made below involve clarifications
and non-substantive corrections of
punctuation, typos, and errors in
references.
1513–3–01: Definitions. These
changes involve the addition of a
description of regular business hours for
the reclamation commission and
subsequent paragraph renumbering.
While this provision has no Federal
counterpart, we find that it is not
inconsistent with the Federal
regulations at 43 CFR part 4, pertaining
to the Office of Hearings and Appeals,
and is therefore approved.
1513–3–02: Internal regulations. The
changes to 1513–3–02(B) and (D) pertain
to the Commission’s procedural rules
regarding quorums and the election of
the secretary. While these provisions
have no Federal counterpart, we find
that they are not inconsistent with the
Federal regulations at 43 CFR part 4,
and are therefore approved.
1513–3–02: Internal regulations. The
changes to 1513–3–02(D)(4) pertain to
the notice of public meetings of the
reclamation commission. These section
changes replace references to public
‘‘hearings’’ to public ‘‘meetings’’ to reflect
the same language that is included
under Ohio’s Sunshine Law. They
clarify that a person may obtain advance
notice of ‘‘regularly’’ scheduled public
meetings, and provide the medium in
which the time and location of such
meetings are made available. Ohio
explained that adjudicatory ‘‘hearings’’
are a subset of the term ‘‘meetings’’
(Administrative Record No. OH–2188–
05). While these provisions have no
Federal counterpart, we find that they
are not inconsistent with the Federal
regulations at 43 CFR part 4, and are
therefore approved.
1513–3–02: Internal regulations. The
change to 1513–3–02(H) regarding the
availability of transcripts of commission
proceedings is consistent with 43 CFR
4.23, Transcript of hearings, and is
therefore approved.
1513–3–02: Internal regulations. The
change to 1513–3–02(I) regarding the
issuance of subpoenas is consistent with
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43 CFR 4.26, Subpoena power and
witness provisions generally, and is
therefore approved.
1513–3–03: Appearance and practice
before the commission. The changes to
1513–3–03(C) regarding representation
when appearing before the commission
are not inconsistent with 43 CFR 4.3,
Representation before appeals boards,
and are therefore approved.
1513–3–04: Appeals to the
reclamation commission. The changes
to 1513–3–04(B)(7) involve referencing
pertinent regulations of the Revised
Code and clarifying who may appeal.
These changes are consistent with 43
CFR 4.1281, Who may appeal, and 43
CFR 4.1282, Appeals; how taken, and
are therefore approved.
1513–3–05: Filing and service of
papers. The change to 1513–3–05(H)
involves the documentation required for
a filing of an appeal. This change is not
inconsistent with 43 CFR 4.1107, Filing
of documents, and is therefore
approved.
1513–3–08: Temporary Relief. The
change to 1513–3–08(F) provides that
the chairman who decided temporary
relief will be involved in the final
decision of the full commission with
respect to an appeal of the temporary
relief ruling. This change is not
inconsistent with 43 CFR 4.1267,
Appeals (of decisions on temporary
relief) and 4.1367(f), Request for
temporary relief, and is therefore
approved.
1513–3–09: Responsive pleadings.
The change to 1513–3–09(B) adds a time
frame for responding to the commission.
While this provision has no direct
Federal counterpart, we find that it is
not inconsistent with the Federal
regulations at 43 CFR part 4, and is
therefore approved.
1513–3–10: Discovery. The change to
1513–3–10(C) deletes the phrase ‘‘not
privileged.’’ Read by itself, this
amendment could be construed to allow
discovery of privileged information,
without the permission of the person or
agency in possession of the information.
However, existing language also states
that ‘‘[d]iscovery shall be conducted in
accordance with the procedural
provisions of the ‘Ohio Rules of Civil
Procedure.’’’ Rule 26 of Ohio’s Rules of
Civil Procedure provides ‘‘[p]arties may
obtain discovery regarding any matter,
not privileged, which is relevant to the
subject matter involved in the pending
action. Therefore, the change proposed
here is non-substantive, does not render
the State provision inconsistent with 43
CFR 4.1130 and 4.1132(a), and is
approved.
1513–3–11: Motions. The changes to
1513–3–11(A)(4); 1513–3–11(C) and (E)
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amend the deadlines for filing responses
to written motions, for filing motions for
reconsideration, and for filing motions
for continuance before the reclamation
commission. Other changes in this
section involve paragraph renumbering.
While these amended time limitations
have no direct Federal counterparts, we
find that they are not inconsistent with
43 CFR 4.22(d) and 43 CFR 4.1112, and
they are therefore approved.
1513–3–12: Pre-hearing procedures.
The changes to 1513–3–12(A) through
(C) provide that a hearings officer may
schedule and hold pre-hearing
conferences, issue orders involving such
conferences, and require filing of prehearing statements. Under the current
program, only the full reclamation
commission may take these actions.
While these changes have no Federal
counterparts, we find that they are not
inconsistent with 43 CFR 4.1121(b), and
are therefore approved.
1513–3–13: Notice of hearings and
continuance of hearings. Changes to
1513–3–13(C) require that motions be
filed at least fourteen days prior to the
hearing. Motions for continuance made
after this deadline will be granted only
upon a demonstration of a need based
upon an extraordinary situation. Under
the current regulation, such a motion
could be filed as late as five days prior
to the hearing and granted without a
demonstration that an extraordinary
situation exists. While this provision
has no Federal counterpart, we find that
it is not inconsistent with the Federal
regulations at 43 CFR part 4, and is
therefore approved.
1513–3–14: Site views and location of
hearings. The changes to 1513–3–14(A)
involving site inspections require that
safety requirements be met; clarify that
a quorum of commission members need
not attend a site view; and add that the
commission may limit the number of
individuals that may accompany a party
to a site view. While these provisions
have no Federal counterpart, we find
that they are not inconsistent with the
Federal regulations at 43 CFR part 4,
and are therefore approved.
1513–3–16: Conduct of evidentiary
hearings. The change to 1513–16(I)
allows the commission to order the
parties to file proposed findings of fact
and conclusions of law at the
conclusion of a hearing. We find that
this change is consistent with 43 CFR
4.1126, Proposed findings of fact and
conclusions of law, and is therefore
approved.
1513–3–18: Reports and
recommendations of the hearing officer.
The change to 1513–3–18(F) increases
the time in which a party may file a
response to objections to a hearing
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officer’s report and recommendations
from seven to fourteen days. While this
provision has no Federal counterpart,
we find that it is not inconsistent with
the Federal regulations at 43 CFR part
4, and is therefore approved.
IV. Summary and Disposition of
Comments
Public Comments
We asked for public comments on the
amendment (Administrative Record No.
OH–2188–04) 74 FR 17802. We did not
receive any public comments or a
request to hold a public meeting.
Federal Agency Comments
Under Federal regulations at 30 CFR
732.17(h)(11)(i) and section 503(b) of
SMCRA, we requested comments on the
amendment from various Federal
agencies with an actual or potential
interest in the Ohio program
(Administrative Record No. OH–2188–
02). The Mine Safety and Health
Administration (MSHA), District 1,
responded (Administrative Record No.
OH–2188–03) that it did not find any
changes or issues that would impact
upon coal miners’ health and safety.
Environmental Protection Agency (EPA)
Concurrence and Comments
Under Federal regulations at 30 CFR
732.17(h)(11)(ii), we are required to get
a written concurrence from EPA for
those provisions of the program
amendment that relate to air or water
quality standards issued under the
authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act
(42 U.S.C. 7401 et seq.).
None of the revisions that Ohio
proposed to make in this amendment
pertain to air or water quality standards.
Therefore, we did not ask EPA to concur
on the amendment.
V. OSM’s Decision
Based on the above findings, we
approve the amendment Ohio sent to us
on January 22, 2009, pertaining to
Ohio’s Administrative code.
VI. Procedural Determinations
Executive Order 12630—Takings
This rule does not have takings
implications. This determination is
based on the analysis performed for the
counterpart Federal regulations.
Executive Order 12866—Regulatory
Planning and Review
This rule is exempted from review by
the Office of Management and Budget
under Executive Order 12866.
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Executive Order 12988—Civil Justice
Reform
The Department of the Interior has
conducted the reviews required by
Section 3 of Executive Order 12988 and
has determined that, to the extent
allowable by law, this rule meets the
applicable standards of Subsections (a)
and (b) of that Section. However, these
standards are not applicable to the
actual language of State regulatory
programs and program amendments
because each program is drafted and
promulgated by a specific State, not by
OSM. Under Sections 503 and 505 of
SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR
730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory
programs and program amendments
submitted by the States must be based
solely on a determination of whether the
submittal is consistent with SMCRA and
its implementing Federal regulations
and whether the other requirements of
30 CFR parts 730, 731, and 732 have
been met.
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Executive Order 13132—Federalism
This rule does not have Federalism
implications. SMCRA delineates the
roles of the Federal and State
governments with regard to the
regulation of surface coal mining and
reclamation operations. One of the
purposes of SMCRA is to ‘‘establish a
nationwide program to protect society
and the environment from the adverse
effects of surface coal mining
operations.’’ Section 503(a)(1) of SMCRA
requires that State laws regulating
surface coal mining and reclamation
operations be ‘‘in accordance with’’ the
requirements of SMCRA, and Section
503(a)(7) requires that State programs
contain rules and regulations
‘‘consistent with’’ regulations issued by
the Secretary pursuant to SMCRA.
Executive Order 13175—Consultation
and Coordination With Indian Tribal
Government
In accordance with Executive Order
13175, we have evaluated the potential
effects of this rule on Federallyrecognized Indian Tribes and have
determined that the rule does not have
substantial direct effects on one or more
Indian Tribes, on the relationship
between the Federal Government and
Indian Tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian Tribes.
The basis for this determination is that
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our decision is on a State regulatory
program and does not involve a Federal
program involving Indian lands.
Executive Order 13211—Regulations
That Significantly Affect The Supply,
Distribution, or Use of Energy
On May 18, 2001, the President issued
Executive Order 13211 which requires
agencies to prepare a Statement of
Energy Effects for a rule that is (1)
considered significant under Executive
Order 12866, and (2) likely to have a
significant adverse effect on the supply,
distribution, or use of energy. Because
this rule is exempt from review under
Executive Order 12866 and is not
expected to have a significant adverse
effect on the supply, distribution, or use
of energy, a Statement of Energy Effects
is not required.
National Environmental Policy Act
This rule does not require an
environmental impact statement
because Section 702(d) of SMCRA (30
U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory
program provisions do not constitute
major Federal actions within the
meaning of Section 102(2)(C) of the
National Environmental Policy Act
(NEPA) (42 U.S.C. 4332(2)(C)).
Paperwork Reduction Act
This rule does not contain
information collection requirements that
require approval by OMB under the
Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior
certifies that this rule will not have a
significant economic effect on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). The State submittal,
which is the subject of this rule, is based
upon Federal regulations for which an
economic analysis was prepared and
certification made that such regulations
would not have a significant economic
effect upon a substantial number of
small entities. In making the
determination as to whether this rule
would have a significant economic
impact, the Department relied upon data
and assumptions for the Federal
regulations.
Small Business Regulatory Enforcement
Fairness Act
This rule is not a major rule under 5
U.S.C. 804(2), the Small Business
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72951
Regulatory Enforcement Fairness Act.
This rule: (a) Does not have an annual
effect on the economy of $100 million;
(b) Will not cause a major increase in
costs or prices for consumers,
individual industries, geographic
regions, or Federal, State, or local
government agencies; and (c) Does not
have significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises. This
determination is based upon the fact
that the State submittal, which is the
subject of this rule, is based upon
Federal regulations for which an
analysis was prepared and a
determination made that the Federal
regulation was not considered a major
rule.
Unfunded Mandates
This rule will not impose an
unfunded mandate on State, local, or
Tribal governments or the private sector
of $100 million or more in any given
year. This determination is based upon
the fact that the State submittal, which
is the subject of this rule, is based upon
Federal regulations for which an
analysis was prepared and a
determination made that the Federal
regulation did not impose an unfunded
mandate.
List of Subjects in 30 CFR Part 935
Intergovernmental relations, Surface
mining, Underground mining.
Dated: July 1, 2010.
Thomas D. Shope,
Regional Director, Appalachian Region.
For the reasons set out in the
preamble, 30 CFR part 935 is amended
as set forth below:
■
PART 935—OHIO
1. The authority citation for part 935
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
2. Section 935.15 is amended in the
table by adding a new entry in
chronological order by ‘‘Date of Final
Publication’’ to read as follows:
■
§ 935.15 Approval of Ohio regulatory
program amendments.
*
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Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations
Original
amendment
submission date
Date of final
publication
*
Citation/description
*
January 22,
2009.
*
November 29,
2010.
rule, call or e-mail Lieutenant (LT)
Russel Pickering, Coast Guard;
telephone 985–380–5320, e-mail
russel.t.pickering@uscg.mil. If you have
questions on viewing the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION:
BILLING CODE 4310–05–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
Regulatory Information
[Docket No. USCG–2010–0979]
RIN 1625–AA00
Safety Zone; 1000-yard radius from
position 29≥48.77′ N 091≥33.02′ W,
Charenton Drainage and Navigation
Canal, St. Mary Parish, LA
Coast Guard, DHS.
Temporary final rule.
AGENCY:
The Coast Guard is
establishing a temporary safety zone
extending to a 1000-yard radius from
position 29°48.77′ N 091°33.02′ W,
Charenton Drainage and Navigation
Canal, St. Mary Parish, LA. This Safety
Zone is needed to protect the general
public, vessels and tows from
destruction, loss or injury due to a
sunken vessel and associated hazards.
DATES: This rule is effective in the CFR
on November 29, 2010 through
December 31, 2010. This rule is effective
with actual notice for purposes of
enforcement on October 20, 2010. This
rule will remain in effect until
December 31, 2010.
ADDRESSES: Documents indicated in this
preamble as being available in the
docket are part of docket USCG–2010–
0979 and are available online by going
to https://www.regulations.gov, inserting
USCG–2010–0979 in the ‘‘Keyword’’
box, and then clicking ‘‘Search.’’ They
are also available for inspection or
copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this temporary
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SUMMARY:
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OAC 1513–3–01; 3–02(B); 3–02(D)(4); 3–02(H)–(I)(1); 3–03(C); 3–04(B)(7); 3–04(H); 3–08(F); 3–09(B)–(C);
3–10(C); 3–11(A)(4); 3–11(C); 3–11(E)–(G); 3–12(A)–(C); 3–13(C)(2)–(3); 3–14(A)(2)–(4); 3–16(E)(2); 3–
16(F)(2); 3–16(G); 3–16(I); 3–18(F); 3–19(A); 3–19(F); 3–19(I).
[FR Doc. 2010–29916 Filed 11–26–10; 8:45 am]
ACTION:
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The Coast Guard is issuing this
temporary final rule without prior
notice and opportunity to comment
pursuant to authority under section 4(a)
of the Administrative Procedure Act
(APA) (5 U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Under 5 U.S.C.
553(b)(B), the Coast Guard finds that
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule because
publishing an NPRM would be
impracticable, as immediate action is
needed to protect the general public,
vessel and tows from a sunken vessel
and associated hazards in position
29°48.77′ N 091°33.02′ W, in the
Charenton Drainage and Navigation
Canal.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register. Publishing an NPRM and
delaying its effective date would be
contrary to public interest since
immediate action is needed to protect
the general public, vessel and tows from
destruction, loss or injury due to sunken
vessel and associated hazards in
position 29°48.77′ N 091°33.02′ W.
Background and Purpose
A Mobile Inshore Drilling Rig
(Hercules Rig 61) scheduled for scrap
sank in the Charenton Navigation and
Drainage Canal. The Charenton
Navigation and Drainage Canal will be
closed to all marine traffic within a
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1000-yard radius of position 29°48.77′ N
091°33, from 20 OCT, 2010 through 31
DEC, 2010. This Safety Zone is needed
to protect the general public, vessels
and tows from destruction, loss or
injury from a sunken vessel and
associated hazards.
Discussion of Rule
The Coast Guard is establishing a
temporary Safety Zone in a 1000-yard
radius of position 29°48.77′ N
091°33.02′ W within the Charenton
Drainage and Navigation Canal. The
temporary Safety Zone will continue
from October 20, 2010 through
December 31, 2010. Vessels and tows
may not enter this zone unless
authorized by the Captain of the Port
Morgan City.
Regulatory Analyses
We developed this rule after
considering numerous statutes and
executive orders related to rulemaking.
Below we summarize our analyses
based on 13 of these statutes or
executive orders.
Regulatory Planning and Review
This rule is not a significant
regulatory action under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of potential costs
and benefits under section 6(a)(3) of that
Order. The Office of Management and
Budget has not reviewed it under that
Order.
This rule will only be in effect for a
short period of time and notifications to
the marine community will be made
through broadcast notice to mariners
and Local Notice to Mariners. The
impacts on routine navigation are
expected to be minimal.
Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), we have considered
whether this rule would have a
significant economic impact on a
substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
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]]>Agencies
[Federal Register Volume 75, Number 228 (Monday, November 29, 2010)]
[Rules and Regulations]
[Pages 72947-72952]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29916]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[OH-253-FOR; Docket ID OSM-2009-0001]
Ohio Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: We are approving an amendment to the Ohio regulatory program
(the ``Ohio program'') regulations under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). The amendment that we are
approving involves changes to Ohio's internal and procedural rules
arising from a five-year review of the rules. The changes relate to
practice and procedures before the reclamation commission, including
definitions, commission meetings, appearance and practice before the
commission; appeals to the reclamation commission; filing and service
of papers; temporary relief; responsive pleadings; discovery; motions;
pre-hearing procedures; notice of hearings and continuance of hearings;
site views and location of hearings; conduct of evidentiary hearings;
reports and recommendations of the hearing officer; and decisions of
the commission.
DATES: Effective Date: This rule is effective November 29, 2010.
FOR FURTHER INFORMATION CONTACT: George Rieger, Chief, Pittsburgh Field
Division, Columbus Office, Office of Surface Mining Reclamation and
Enforcement, Telephone: (614) 416-2238, e-mail: grieger@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program
II. Description and Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Ohio Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7).
You can find background information on the Ohio program, including
the Secretary's findings, the disposition of comments, and conditions
of approval in the August 16, 1982, Federal Register (47 FR 34688). You
can also find later actions concerning Ohio's program and program
amendments at 30 CFR 935.11, 935.12, 935.15, and 935.16.
II. Description and Submission of the Amendment
By letter dated January 22, 2009, and received on January 23, 2009,
(Administrative Record No. OH-2188-01), Ohio sent us an amendment to
its program under SMCRA (30 U.S.C. 1201 et seq.). This amendment
includes revisions to its regulations (Ohio Administrative Code).
Pursuant to Ohio Revised Code 119.032, all State agencies must
review their internal and procedural rules every five years. In
response to this requirement, the Ohio Reclamation Commission reviewed
its procedural rules. The Commission's procedural rules are found at
Ohio Administrative Code 1513-3-01 through 1513-3-22.
[[Page 72948]]
This amendment contains the changes made to the Ohio Administrative
Code as a result of this review. Changes relate to practice and
procedures before the reclamation commission, including definitions;
commission meetings; appearance and practice before the commission;
appeals to the reclamation commission; filing and service of papers;
temporary relief; responsive pleadings; discovery; motions; pre-hearing
procedures; notice of hearings and continuance of hearings; site views
and location of hearings; conduct of evidentiary hearings; reports and
recommendations of the hearing officer; and decisions of the
commission. These changes are identified below, with additions
italicized and deletions bracketed:
1513-3-01: Definitions.
(N) ``Regular business hours'' for the reclamation commission means
10:00 a.m. to 6:00 p.m. Monday through Friday, except for State
holidays or other days in which offices of the government of the State
of Ohio are permitted to close due to weather, safety or other
unforeseeable events which present a risk to the public or to the
commission employees. In the event of the absence of the office staff,
contact information for the chairman and vice-chairman of the
commission will be prominently posted at the commission offices.
[(N)](O) ``Rules of the reclamation commission'' means rules 1513-
3-01 to 1513-3-22 of the Administrative code and shall apply to appeals
filed under both Chapters 1513 and 1514. of the Revised code, unless
specifically provided otherwise.
1513-3-02: Internal regulations.
(B) Four members constitute a quorum, and no action of the
commission shall be valid unless it has the concurrence of at least
four members. Where, in rendering a decision, a concurrence of at least
four commission members is not obtained, the existing record of
proceedings may be submitted to any absent commission member, who will
be permitted to participate in the rendering of the decision. [at a
subsequent commission meeting.]
1513-3-02: Internal regulations.
(D) Pursuant to section 1513.05 of the Revised code, the
reclamation commission shall elect [may appoint] a secretary, who shall
perform such duties as the commission prescribes, including:
1513-3-02: Internal regulations.
(D)(4) Providing notice of all public meetings [hearings] of the
reclamation commission in accordance with the following procedures:
(a) Any person may determine the time and place of regularly-
scheduled public meetings [hearings or the time and place of any
temporary relief hearings] by contacting the office of the reclamation
commission during regular business hours;
(b) Upon request, any person may obtain advance notice of all
regularly-scheduled public meetings [hearings] by supplying the office
of the reclamation commission with stamped, self-addressed envelopes.
The office will mail to such person a notice of the time and place of
meetings [hearings] at least four calendar days before the meeting
[hearing] is scheduled; [unless the hearing is a temporary relief
hearing;]
(c) The reclamation commission shall provide the office of the
reclamation commission with the time and place of meetings [hearings]
requiring public notice under the provisions of this rule within
sufficient time to enable the office to comply with the provisions of
this rule.
(d) The time and location for commission meetings shall be
announced in the Hannah Report published by Rotunda, Inc.
1513-3-02: Internal regulations.
(H) Any [The] transcript [or recording] of a [any] proceeding
before the commission, if filed with the commission [shall be the
property of the commission and] shall be made available for
reproduction upon application to the commission and payment of
reproduction costs.
(I) Issuance of subpoenas.
(1) Upon request of a party, or at the initiative of the
commission, the commission shall issue subpoenas ad testificandum or
duces tecum.
1513-3-03: Appearance and practice before the commission.
(C) Except as prohibited by section 4705.01 of the Revised code,
any party may appear on his own behalf or may be represented by an
attorney at law admitted to practice before the Supreme Court of Ohio,
or by an attorney admitted to practice by the commission pursuant to a
motion to appear pro hac vice. [In the absence of an attorney, a party
may represent itself, a partnership may be represented by any of its
members, a corporation or association may be represented by any of its
officers and any governmental unit may be represented by an employee
offering proof of authority.]
1513-3-04: Appeals to the reclamation commission.
(B) A notice of appeal must:
(7) Pursuant to section 1513.13 of the Revised Code, identify
[Identify] the grounds upon which review is being sought, the manner in
which appellant is aggrieved or adversely affected by the action of the
chief of the division of mineral resources management and the relief
sought on appeal;
1513-3-05: Filing and service of papers.
(H) If papers filed with the commission cite case law as authority
in support of argument, the filing must include a copy of the case law
cited and must refer to the page number or paragraph on which the
relevant language is found.
1513-3-08: Temporary Relief.
(F) The decision of the chairman of the reclamation commission to
grant or deny temporary relief may be appealed to the [full]
commission, including the chairman who decided temporary relief, within
thirty days after the chairman's issuance of the decision in accordance
with the provisions of section 1513.13 of the Revised Code. The [full]-
commission may confine its review to the record developed at the
temporary relief hearing conducted by the chairman. The [full]
commission shall affirm the decision of the chairman, unless it
determines that the chairman's decision is arbitrary, capricious, or
otherwise inconsistent with law.
1513-3-09: Responsive pleadings.
(B) Unless the commission orders otherwise, the party ordered to
file a response pursuant to this rule shall have ten days from the
issuance of the commission's order to make such filing.
[(B](C) Failure to respond when ordered may be treated as a failure
to appear at hearing.
1513-3-10: Discovery.
(C) Discovery shall be conducted in accordance with the procedural
provisions of the ``Ohio Rules of Civil Procedure.'' Discovery may
include oral depositions, written interrogatories to parties,
inspection of premises, requests for admission, and inspection of
documents. [not privileged.]
1513-3-11: Motions.
(A) Except for oral motions which must be made in proceedings on
the record, or where the commission otherwise directs, any motion made
to the reclamation commission shall:
(4) Be filed with the commission and served upon all parties to the
proceeding at least ten [five] days in advance of the hearing, unless
the movant demonstrates that unusual circumstances exist justifying an
exception to this rule.
1513-3-11: Motions.
(C) Motions for reconsideration of any decision of the commission
shall be made in writing within ten [fourteen] days after the issuance
of the commission's decision. A motion for reconsideration shall state
with
[[Page 72949]]
particularity the grounds on which it is based. The filing of a motion
for reconsideration does not extend the time for filing a notice of
appeal in the appellate court.
1513-3-11: Motions.
(E) In compliance with the requirements of 1513-3-13(C)(2), motions
for continuance of a hearing must be filed with the reclamation
commission and served upon all parties to a proceeding at least
fourteen days in advance of a hearing.
[(E)](F) Unless the commission orders otherwise, any party to a
proceeding shall have ten days from service of the motion or until
hearing, whichever is earlier, to file a response to a motion.
[(F)](G) Failure to make a timely motion or to file a statement in
response to a motion may be construed as a waiver of objection.
1513-3-12: Pre-hearing procedures.
(A) The reclamation commission, or its hearing officer, may
schedule and hold pre-hearing conferences for settlement or
simplification of the issues in any appeal.
(B) Whenever a pre-hearing conference is held, the commission, or
its hearing officer, may issue an order which recites the matters
discussed, the agreements reached, and the rulings made at the pre-
hearing conference.
(C) The commission, or its hearing officer, may require the filing
of a pre-hearing statement by the parties to an appeal.
1513-3-13: Notice of hearings and continuance of hearings.
(C) Continuance of scheduled hearings.
(2) Motions for continuance of a hearing must be filed with the
reclamation commission and served upon all parties to a proceeding at
least fourteen [five] days in advance of a hearing.
(3) Motions for continuance made less than fourteen [five] days
before hearing or at hearing shall be granted only upon demonstration
that an extraordinary situation exists which could not have been
anticipated and which would justify the granting of a continuance.
1513-3-14: Site views and location of hearings.
(A) Site views.
(2) Subject to any applicable safety requirements, the [The]
commission may, upon reasonable notice and at reasonable times, inspect
any site or other premises when the commission is of the opinion that
such a viewing would have a beneficial value in any matter pending
before the commission.
(3) [Unless the right to a site view is statutorily prescribed, a]
A quorum of commission members need not attend a site view.
(4) All parties shall have prior notice of a site view and shall
have the right to be present. Parties shall be informed of any safety
requirements prior to the site view. The commission may limit the
number of persons, which may accompany a party at a site view.
1513-3-16: Conduct of evidentiary hearings.
(E) Written testimony.
(2) The use of a deposition in lieu of the [dependent's] deponent's
oral testimony at hearing shall be allowed under the same provisions as
are articulated in rule 32 of the ``Ohio Rules of Civil Procedure.'' A
party desiring to use a deposition, or any designated part thereof, at
hearing shall file the deposition with the commission and serve written
notice to every other party at least five days prior to hearing.
(F) Witnesses.
(2) The commission may require each party in an appeal to identify
prior to the commencement of a hearing each person who is or may be
present and [in] his interest or who will or may be a witness for his
cause in the appeal.
(G) If the appellant fails to appear personally or by counsel or
other authorized representative at a hearing scheduled after being duly
notified of the hearing by the mailing of a notice of hearing to such
party's last known address, and if good cause for such failure to
appear [appeal] is not shown, the commission shall dismiss the appeal.
(I) The reclamation commission may order the parties to a
proceeding to submit post-hearing briefs or proposed findings of fact
and conclusions of law at a time designated by the commission, on
issues raised on the appeal or upon possible errors or omissions in the
record or on any issues as the commission in its discretion shall
determine. The commission may also order the parties to submit written
closing arguments or proposed findings of fact and conclusions of law
at the conclusion of hearing.
1513-3-18: Reports and recommendations of the hearing officer.
(F) Any party to a proceeding may have [seven] fourteen days from
service of the objections to the report and recommendation of the
hearing officer to file a response.
1513-3-19: Decisions of the commission.
(A) All decisions of the commission shall [incorporate] set forth:
(1) Findings of fact;
(2) Conclusions of law; and
(3) An order granting or denying relief.
1513-3-19: Decisions of the commission.
(F) Remission of prepaid civil penalty assessments.
(1) If a review of a civil penalty assessment results in an order
reducing or eliminating a civil penalty, the reclamation commission
shall remit the funds to the appellant in accordance with division
[(F)](E) of section 1513.02 of the Revised Code.
III. OSM's Findings
We are approving the amendment request under SMCRA and the Federal
regulations at 30 CFR 732.15 and 732.17. Changes for which no findings
are made below involve clarifications and non-substantive corrections
of punctuation, typos, and errors in references.
1513-3-01: Definitions. These changes involve the addition of a
description of regular business hours for the reclamation commission
and subsequent paragraph renumbering. While this provision has no
Federal counterpart, we find that it is not inconsistent with the
Federal regulations at 43 CFR part 4, pertaining to the Office of
Hearings and Appeals, and is therefore approved.
1513-3-02: Internal regulations. The changes to 1513-3-02(B) and
(D) pertain to the Commission's procedural rules regarding quorums and
the election of the secretary. While these provisions have no Federal
counterpart, we find that they are not inconsistent with the Federal
regulations at 43 CFR part 4, and are therefore approved.
1513-3-02: Internal regulations. The changes to 1513-3-02(D)(4)
pertain to the notice of public meetings of the reclamation commission.
These section changes replace references to public ``hearings'' to
public ``meetings'' to reflect the same language that is included under
Ohio's Sunshine Law. They clarify that a person may obtain advance
notice of ``regularly'' scheduled public meetings, and provide the
medium in which the time and location of such meetings are made
available. Ohio explained that adjudicatory ``hearings'' are a subset
of the term ``meetings'' (Administrative Record No. OH-2188-05). While
these provisions have no Federal counterpart, we find that they are not
inconsistent with the Federal regulations at 43 CFR part 4, and are
therefore approved.
1513-3-02: Internal regulations. The change to 1513-3-02(H)
regarding the availability of transcripts of commission proceedings is
consistent with 43 CFR 4.23, Transcript of hearings, and is therefore
approved.
1513-3-02: Internal regulations. The change to 1513-3-02(I)
regarding the issuance of subpoenas is consistent with
[[Page 72950]]
43 CFR 4.26, Subpoena power and witness provisions generally, and is
therefore approved.
1513-3-03: Appearance and practice before the commission. The
changes to 1513-3-03(C) regarding representation when appearing before
the commission are not inconsistent with 43 CFR 4.3, Representation
before appeals boards, and are therefore approved.
1513-3-04: Appeals to the reclamation commission. The changes to
1513-3-04(B)(7) involve referencing pertinent regulations of the
Revised Code and clarifying who may appeal. These changes are
consistent with 43 CFR 4.1281, Who may appeal, and 43 CFR 4.1282,
Appeals; how taken, and are therefore approved.
1513-3-05: Filing and service of papers. The change to 1513-3-05(H)
involves the documentation required for a filing of an appeal. This
change is not inconsistent with 43 CFR 4.1107, Filing of documents, and
is therefore approved.
1513-3-08: Temporary Relief. The change to 1513-3-08(F) provides
that the chairman who decided temporary relief will be involved in the
final decision of the full commission with respect to an appeal of the
temporary relief ruling. This change is not inconsistent with 43 CFR
4.1267, Appeals (of decisions on temporary relief) and 4.1367(f),
Request for temporary relief, and is therefore approved.
1513-3-09: Responsive pleadings. The change to 1513-3-09(B) adds a
time frame for responding to the commission. While this provision has
no direct Federal counterpart, we find that it is not inconsistent with
the Federal regulations at 43 CFR part 4, and is therefore approved.
1513-3-10: Discovery. The change to 1513-3-10(C) deletes the phrase
``not privileged.'' Read by itself, this amendment could be construed
to allow discovery of privileged information, without the permission of
the person or agency in possession of the information. However,
existing language also states that ``[d]iscovery shall be conducted in
accordance with the procedural provisions of the `Ohio Rules of Civil
Procedure.''' Rule 26 of Ohio's Rules of Civil Procedure provides
``[p]arties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending action.
Therefore, the change proposed here is non-substantive, does not render
the State provision inconsistent with 43 CFR 4.1130 and 4.1132(a), and
is approved.
1513-3-11: Motions. The changes to 1513-3-11(A)(4); 1513-3-11(C)
and (E) amend the deadlines for filing responses to written motions,
for filing motions for reconsideration, and for filing motions for
continuance before the reclamation commission. Other changes in this
section involve paragraph renumbering. While these amended time
limitations have no direct Federal counterparts, we find that they are
not inconsistent with 43 CFR 4.22(d) and 43 CFR 4.1112, and they are
therefore approved.
1513-3-12: Pre-hearing procedures. The changes to 1513-3-12(A)
through (C) provide that a hearings officer may schedule and hold pre-
hearing conferences, issue orders involving such conferences, and
require filing of pre-hearing statements. Under the current program,
only the full reclamation commission may take these actions. While
these changes have no Federal counterparts, we find that they are not
inconsistent with 43 CFR 4.1121(b), and are therefore approved.
1513-3-13: Notice of hearings and continuance of hearings. Changes
to 1513-3-13(C) require that motions be filed at least fourteen days
prior to the hearing. Motions for continuance made after this deadline
will be granted only upon a demonstration of a need based upon an
extraordinary situation. Under the current regulation, such a motion
could be filed as late as five days prior to the hearing and granted
without a demonstration that an extraordinary situation exists. While
this provision has no Federal counterpart, we find that it is not
inconsistent with the Federal regulations at 43 CFR part 4, and is
therefore approved.
1513-3-14: Site views and location of hearings. The changes to
1513-3-14(A) involving site inspections require that safety
requirements be met; clarify that a quorum of commission members need
not attend a site view; and add that the commission may limit the
number of individuals that may accompany a party to a site view. While
these provisions have no Federal counterpart, we find that they are not
inconsistent with the Federal regulations at 43 CFR part 4, and are
therefore approved.
1513-3-16: Conduct of evidentiary hearings. The change to 1513-
16(I) allows the commission to order the parties to file proposed
findings of fact and conclusions of law at the conclusion of a hearing.
We find that this change is consistent with 43 CFR 4.1126, Proposed
findings of fact and conclusions of law, and is therefore approved.
1513-3-18: Reports and recommendations of the hearing officer. The
change to 1513-3-18(F) increases the time in which a party may file a
response to objections to a hearing officer's report and
recommendations from seven to fourteen days. While this provision has
no Federal counterpart, we find that it is not inconsistent with the
Federal regulations at 43 CFR part 4, and is therefore approved.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. OH-2188-04) 74 FR 17802. We did not receive any public
comments or a request to hold a public meeting.
Federal Agency Comments
Under Federal regulations at 30 CFR 732.17(h)(11)(i) and section
503(b) of SMCRA, we requested comments on the amendment from various
Federal agencies with an actual or potential interest in the Ohio
program (Administrative Record No. OH-2188-02). The Mine Safety and
Health Administration (MSHA), District 1, responded (Administrative
Record No. OH-2188-03) that it did not find any changes or issues that
would impact upon coal miners' health and safety.
Environmental Protection Agency (EPA) Concurrence and Comments
Under Federal regulations at 30 CFR 732.17(h)(11)(ii), we are
required to get a written concurrence from EPA for those provisions of
the program amendment that relate to air or water quality standards
issued under the authority of the Clean Water Act (33 U.S.C. 1251 et
seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Ohio proposed to make in this amendment
pertain to air or water quality standards. Therefore, we did not ask
EPA to concur on the amendment.
V. OSM's Decision
Based on the above findings, we approve the amendment Ohio sent to
us on January 22, 2009, pertaining to Ohio's Administrative code.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
[[Page 72951]]
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by Section 3 of Executive Order 12988 and has determined that, to the
extent allowable by law, this rule meets the applicable standards of
Subsections (a) and (b) of that Section. However, these standards are
not applicable to the actual language of State regulatory programs and
program amendments because each program is drafted and promulgated by a
specific State, not by OSM. Under Sections 503 and 505 of SMCRA (30
U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR parts 730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and Section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Government
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal Government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
The basis for this determination is that our decision is on a State
regulatory program and does not involve a Federal program involving
Indian lands.
Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of Section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
Federal regulations for which an economic analysis was prepared and
certification made that such regulations would not have a significant
economic effect upon a substantial number of small entities. In making
the determination as to whether this rule would have a significant
economic impact, the Department relied upon data and assumptions for
the Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, geographic regions, or Federal, State, or local government
agencies; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation did not impose an unfunded mandate.
List of Subjects in 30 CFR Part 935
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 1, 2010.
Thomas D. Shope,
Regional Director, Appalachian Region.
0
For the reasons set out in the preamble, 30 CFR part 935 is amended as
set forth below:
PART 935--OHIO
0
1. The authority citation for part 935 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 935.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 935.15 Approval of Ohio regulatory program amendments.
* * * * *
[[Page 72952]]
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Date of final
Original amendment submission date publication Citation/description
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* * * * * * *
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January 22, 2009..................... November 29, 2010...... OAC 1513-3-01; 3-02(B); 3-02(D)(4); 3-02(H)-
(I)(1); 3-03(C); 3-04(B)(7); 3-04(H); 3-08(F);
3-09(B)-(C); 3-10(C); 3-11(A)(4); 3-11(C); 3-
11(E)-(G); 3-12(A)-(C); 3-13(C)(2)-(3); 3-
14(A)(2)-(4); 3-16(E)(2); 3-16(F)(2); 3-16(G);
3-16(I); 3-18(F); 3-19(A); 3-19(F); 3-19(I).
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[FR Doc. 2010-29916 Filed 11-26-10; 8:45 am]
BILLING CODE 4310-05-P
