Ohio Regulatory Program, 43977-43983 [2018-18706]
Download as PDF
Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 935
[SATS No. OH–255–FOR; Docket No. OSM–
2013–0012;
S1D1SSS08011000SX066A000178S180110;
S2D2SSS08011000SX066A00017XS501520]
Ohio Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment with two exceptions.
AGENCY:
The Office of Surface Mining
Reclamation and Enforcement (OSMRE)
is approving, with two exceptions, an
amendment to the Ohio regulatory
program (the Ohio program) under the
Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the
Act). Ohio’s submission demonstrates
its intent to revise its program by
amending the Ohio Reclamation
Commission’s (the Commission)
procedural rules. By submission of the
amended procedural rules, found within
Ohio Administrative Code (OAC) at
sections 1513–3–01 through 1513–3–22,
Ohio proposed to revise the Ohio
program pursuant to the additional
flexibility afforded by the revised
Federal regulations at 30 CFR 732.17,
and SMCRA, as amended. As a result of
review of the Ohio program, the
proposed amendment, and an
opportunity for public comments,
OSMRE has determined that the
majority of the submittal is no less
stringent than SMCRA and no less
effective than the corresponding
regulations. The two revisions not
approved by OSMRE are found within
OAC at section 1513–3–07(A), which
relates to intervention. OSMRE’s
rationale for not approving these
proposed revisions is explained in
depth below.
DATES: Effective Date: September 28,
2018.
SUMMARY:
Mr.
Ben Owens, Chief, Pittsburgh Field
Division, OSMRE, Three Parkway
Center, 2nd Floor, Pittsburgh,
Pennsylvania 15220. Telephone: (412)
937–2827. Email: bowens@osmre.gov.
SUPPLEMENTARY INFORMATION:
sradovich on DSK3GMQ082PROD with RULES
FOR FURTHER INFORMATION CONTACT:
I. Background on the Ohio Program
II. Submission of the Amendment
III. OSMRE’s Findings
IV. Summary and Disposition of Comments
V. OSMRE’s Decision
VI. Procedural Determinations
VerDate Sep<11>2014
16:05 Aug 28, 2018
Jkt 244001
I. Background on the Ohio Program
Section 503(a) of SMCRA allows 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, state laws
and regulations that govern surface coal
mining and reclamation operations in
accordance with the Act and consistent
with the Federal regulations. See 30
U.S.C. 1253(a)(1) and (7). On the basis
of these criteria, the Secretary of the
Interior conditionally approved the
Ohio program effective August 16, 1982.
Notice of the conditional approval of
Ohio’s permanent regulatory program
was published in the Federal Register
on August 10, 1982 (47 FR 34688). You
can also find later actions concerning
Ohio’s program and program
amendments at 30 CFR 935.11, 935.15,
and 935.30.
II. Submission of the Proposed
Amendment
For background purposes, the
Commission is an adjudicatory board
established pursuant to Ohio Revised
Code (ORC) section 1513.05. The
Commission is the office to which
administrative appeals may be filed by
any person claiming to be aggrieved or
adversely affected by a decision of the
Ohio Department of Natural Resources,
Chief of the Division of Mineral
Resources Management (DMRM),
relating to mining and reclamation
issues. Following an adjudicatory
hearing, the Commission affirms,
vacates, or modifies the DMRM Chief’s
decision. The Commission is comprised
of eight members appointed by the
Governor of Ohio. Members represent a
variety of interests relevant to mining
and reclamation issues. The
Commission adopts rules to govern its
procedures. The Commission’s rules are
found at OAC section 1513–3–01
through 1513–3–22 and are the subject
of the current amendment to the Ohio
program. By letter dated November 6,
2013, Ohio submitted an amendment to
its program, (Administrative Record No.
OH–2192–01). Ohio’s submittal was
prompted by requirements within the
Ohio statute that all state agencies must
review their administrative rules every
five years. Consistent with this
requirement, the Commission revised its
rules to ensure an orderly, efficient, and
effective appeal process. By submitting
the amendment to OSMRE, Ohio
exercised its ability to revise the Ohio
program pursuant to the additional
flexibility afforded by the revised
Federal regulations at 30 CFR 732.17,
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
43977
and SMCRA, as amended, to improve
operational efficiency of the Ohio
program and to ensure Ohio’s proposed
provisions are consistent, and in
accordance, with SMCRA and are no
less effective than the corresponding
Federal regulations.
OSMRE announced receipt of the
proposed amendment in the May 20,
2014, Federal Register (79 FR 28854). In
the same document, OSMRE opened the
public comment period and provided an
opportunity for a public hearing or
meeting.
OSMRE did not hold a public hearing
or meeting, as neither were requested.
The public comment period closed on
June 19, 2014. OSMRE did not receive
any comments.
III. Summary of the Ohio Amendment
and OSMRE’s Findings on the
Amendment
Following is a summary of various
provisions of the amendment that Ohio
submitted, as well as OSMRE’s findings
on whether those provisions are
consistent, and in accordance, with
SMCRA and are no less effective than
the Federal regulations at 30 CFR 732.15
and 732.17. As described below,
OSMRE is approving the amendment
with the exception of two provisions in
the proposed rule, one at section 1513–
3–07(A), relating to the intervention of
a party, and the other at 1513–3–
07(D)(4), relating to the effect of
intervention. Any revisions that we do
not specifically discuss below concern
non-substantive wording or editorial
changes.
1513–3–01 Definitions
These changes clarify existing
definitions and provide additional
definitions. Specifically, the definition
of ‘‘appellant’’ is clarified to explicitly
state that actions of the DMRM Chief are
subject to appeal to the Commission.
The definition of ‘‘final order’’ clarifies
that the resolution of matters presented
on appeal will be in writing and
consistent with section 1513–3–19 of
the OAC. The definition of ‘‘full party’’
is added. This definition will define
‘‘full party’’ to include the appellant, the
appellee, and any intervenor
participating in an appeal as defined by
the OAC at section 1513–3–07 entitled,
‘‘Intervention.’’ Additionally, the term,
‘‘interested persons in an appeal
pending before the Commission’’ is
added. This term, as approved, defines
interested person as the appellant, the
appellee, any intervenors, or and any
other persons who have notified the
Commission of an interest in a pending
appeal and have requested to be notified
of hearings in said appeal. The
E:\FR\FM\29AUR1.SGM
29AUR1
43978
Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations
definition of ‘‘intervenor’’ is modified to
remove the word ‘‘one’’ and replace it
with the term, ‘‘any person.’’ The
definition of ‘‘person’’ is modified to
encompass limited liability companies.
Within the definition of ‘‘regular
business hours’’ the terms ‘‘chairman’’
and ‘‘vice-chairman’’ are replaced by
‘‘chairperson’’ and ‘‘vice-chairperson,’’
respectively. The remaining
modifications renumber the terms to
facilitate the addition of new terms.
OSMRE Finding: We have determined
that the definitions of ‘‘appellant,’’
‘‘final order,’’ ‘‘full party,’’ ‘‘interested
persons in an appeal pending before the
Commission,’’ and ‘‘regular business
hours’’ do not have Federal
counterparts. However, they are not
inconsistent with SMCRA or the Federal
regulations. Therefore, we approve these
definitions. The revised definition of
‘‘intervenor’’ remains consistent with its
Federal counterpart at 43 CFR 4.1110
and is therefore approved. There is no
direct Federal counterpart to the revised
portion of Ohio’s definition of ‘‘person,’’
as the Federal counterpart does not
specifically include limited liability
companies. However, the Federal
definition does include corporations
and partnerships; limited liability
companies are essentially amalgams of
those two business structures.
Therefore, the change to the State’s
definition does not render it
inconsistent with the Federal
regulations at 30 CFR 700.5, and we are
approving the change.
sradovich on DSK3GMQ082PROD with RULES
1513–3–02
Internal Regulations
Paragraph (B) of Section 1513–3–02,
which is entitled, ‘‘Quorum,’’ is
modified to clarify the conditions for
satisfying quorum requirements. Four
members of the Commission must be
present to qualify as a quorum, and an
action by the Commission is not valid
unless at least four members concur.
Additionally, the rule clarifies the
procedure in the event concurrence is
not reached. As amended, four members
must agree that concurrence is not met.
Further, when concurrence is not met,
the existing record of proceedings is to
be submitted to all members of the
Commission who did not attend any
portion of the proceedings. These
members may determine if they wish to
participate in the appeal. Following
review of the record, they must
participate in the rendering of a
decision. The provision for a tied vote
is eliminated.
The amendment provides that, in the
event that a concurrence cannot be
reached, a decision must be rendered
stating such and an Order must be
VerDate Sep<11>2014
16:05 Aug 28, 2018
Jkt 244001
issued affirming the action of the
DMRM Chief under review.
Furthermore, the rule clarifies that in
the event a Commission member
considered as part of the quorum misses
any part of the proceeding, he or she
must review the record before
participating in the rendering of a
decision. Audio-electronic hearings
before the Commission constitute the
official record of the hearing. However,
other methods of creating the official
record are permitted upon the
Commission’s discretion, by joint
motion of the parties, or by motion of
a party and subsequent approval by the
Commission. Additionally, the issuance
and service of subpoenas must comply
with the Ohio Rules of Civil Procedure,
and, as applicable, section 119.094 of
the ORC, including its requirement that
a fee must be paid to witnesses outside
the county in which a hearing must be
held.
OSMRE Finding: We have determined
that the provisions in this section do not
have direct Federal counterparts.
However, they are not inconsistent with
the Federal regulations at 43 CFR 4.2,
which governs, generally, membership
of administrative boards and decisions
of those boards. Therefore, we approve
the proposed changes to OAC 1513–3–
02.
1513–3–03 Appearance and Practice
Before the Commission
The rule clarifies that any party may
appear on their own behalf or may be
represented by an attorney at law
admitted to practice according to Ohio
law. This includes the admittance of
attorneys pro hac vice.
OSMRE Finding: We have determined
that the provisions in this section are
consistent with the Federal regulations
at 43 CFR 1.3 and 4.3, which govern,
respectively, who may practice in
Departmental administrative
proceedings, and representation before
appeals boards. Therefore, we approve
the changes to OAC 1513–3–03.
1513–3–04 Appeals to the Reclamation
Commission
Although the majority of the changes
to this section are clerical and nonsubstantive, the rule clarifies that email
addresses, if available, should be
included in the notice of appeal.
Additionally, appellants must include a
copy of the written notice, order or
decision of the DMRM Chief to be
reviewed. Appellants are required to
comply with the requirements of section
1513.02 of the ORC, pertaining to the
power and duties of the DMRM Chief,
and must include and forward the
amount of any penalty for placement in
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
a penalty fund. The rule adds a section
describing information that the
appellant may include in the notice of
appeal. Appellants may, but are not
required to, identify the area to which
the notice, Order, or decision relates;
state whether or not the Commission is
requested to view the site; and state
whether or not the appellant waives the
right to have the hearing within the time
frames established in section
1513.13(B), Appeal of notice of
violation, order or decision to
reclamation commission of the ORC.
When filing a notice of appeal
pertaining to the review of a decision to
approve or disapprove a permit
application, an appellant must comply
with section 1513.07, Coal mining and
reclamation permit of the ORC, and
must file the notice of appeal within 30
days of notice of the DMRM Chief’s
determination.
It is further clarified that a notice of
appeal is deemed filed when complete
notice has been provided. Further, a
notice of appeal may be amended
without leave of the Commission during
the time allowed for original filing.
However, amendment of a notice of
appeal may not be employed to cure
jurisdictional defects in the filing
following the close of this time period.
Following the close of this time period,
a notice of appeal may be amended by
leave of the Commission.
OSMRE Finding: We have determined
that the provisions in this section are
consistent with the Federal regulations
governing the varying types of
administrative appeals of decisions of
OSMRE. These regulations are at 43 CFR
4.1107, 4.1115, 4.1153, 4.1164, 4.1184,
4.1263, 4.1282, 4.1303, 4.1363, 4.1372,
and 4.1382. Therefore, we approve the
changes to OAC 1513–3–04.
1513–3–05 Filing and Service of
Papers
This section of the rule clarifies that
the filing of a notice of appeal must
conform to section 1513.13 of the ORC,
Appeal to the Commission. The rule
alters the definition of when a notice of
appeal is deemed filed. The proposed
amendment states that a notice of
appeal will be deemed filed when
received or if the notice of appeal is sent
by certified mail, registered mail, or
express mail, it will be deemed filed on
the date of the postmark placed upon
the sender’s receipt by the postal
service. However, documents requesting
temporary relief are deemed filed when
received by the Commission.
Additionally, all filings other than a
notice of appeal or a request for
temporary relief, that are not sent to the
Commission by certified mail, registered
E:\FR\FM\29AUR1.SGM
29AUR1
Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations
mail, or express mail will be deemed
filed with the Commission on the day
on which the filings are received, and
those that are sent by such means, will
be deemed filed on the postmark date
placed upon the sender’s receipt by the
postal service. Further, following
initiation of an appeal, the Commission
may, through order, establish a filing
and service protocol, which may
include the electronic transmission of
documents.
OSMRE Finding: We have determined
that the provisions in this section are
consistent with the Federal regulations
at 43 CFR 4.1107, which governs the
filing of documents, and 43 CFR 4.1109,
which governs service of documents.
Therefore, we approve the changes to
OAC 1513–3–05.
sradovich on DSK3GMQ082PROD with RULES
1513–3–06 Computation and
Extension of Time
The majority of the changes to this
section are non-substantive and consist
of renumbering for clarity. However,
section (C)(1) is altered to definitively
read that the Commission may not
lengthen or reduce the time period
allowed for any response to, or filing of,
a request for temporary relief.
OSMRE Finding: We have determined
that the provisions in this section do not
have direct Federal counterparts.
However, they are not inconsistent with
the Federal regulations at 43 CFR 4.1261
and 4.1264, which govern, respectively,
applications for temporary relief and
responses thereto. Therefore, we
approve the changes to OAC 1513–3–06.
1513–3–07 Intervention
Ohio submitted a revision to this rule
to require that any person seeking leave
to intervene in an appeal before the
Commission must do so within ten days
prior to the beginning of an evidentiary
hearing on the merits of an appeal,
unless waived by the Commission for
extraordinary cause. OSMRE is not
approving this section of the
amendment as it is inconsistent with the
corresponding provisions of the Federal
regulations found at 43 CFR 4.1110(a).
The Federal counterpart allows any
person, including a State or OSMRE, to
petition to intervene at any stage of a
proceeding. The provision proposed by
Ohio prejudices a potential intervenor
by imposing time limits on petitions to
intervene. Although the proposed
revision would allow intervention after
the ten days preceding an evidentiary
hearing, upon waiver by the
Commission, the potential intervenor
must still demonstrate extraordinary
cause. This additional hurdle is not
imposed by the Federal counterpart.
Therefore, OSMRE is not approving the
VerDate Sep<11>2014
16:05 Aug 28, 2018
Jkt 244001
following sentence in section 1513–3–
07(A), of the proposed amendment: ‘‘A
petition for leave to intervene must be
filed at least ten days prior to the
beginning of an evidentiary hearing on
the merits of an appeal, unless waived
by the commission for extraordinary
cause.’’
Also, the deletion of 1513–3–07(D)(4)
is less effective than the Federal
regulations found at 43 CFR 4.1110.
This deletion would prevent the
Commission from considering the effect
of intervention on the agency’s ability to
implement its statutory mandates.
However, the Federal regulation at 43
CFR 4.1110(d)(4) explicitly allows the
IBLA to consider this effect in deciding
whether intervention is appropriate.
The deletion of this provision in the
OAC would render the Ohio program
less effective by preventing its statutory
mandate from receiving due
consideration in Commission decisions
on intervention. Therefore, OSMRE is
not approving the deletion of OAC
1513–3–07(D)(4).
There is only one other substantive
amendment to this section. The change,
at section 1513–13–07(F), will allow the
filing of amicus briefs and oral argument
at hearing by amicus curiae upon leave
by, and at the discretion of, the
Commission. This provision does not
have direct Federal counterparts.
However, it is not inconsistent with
relevant sections of 43 CFR part 4.
Therefore, this provision of OAC 1513–
3–07 is approved.
1513–3–08
Temporary Relief
The amendments to this section are
non-substantive and primarily consist of
language to make references gender
neutral. Therefore, the amendments are
approved.
1513–3–10
Discovery
Previous discovery rules are amended
to clarify parties to an appeal may
obtain discovery in accordance with the
provisions of rules 26 through 36 of the
Ohio Rules of Civil Procedure.
Additionally, the rule explains that all
parties, including intervenors, are
subject to discovery and that discovery
from non-parties must be done through
subpoena. In the event a party fails to
obey an order to compel or permit
discovery issued by the Commission,
the Commission may make such orders
in regard to the failure as it deems just.
OSMRE Finding: We have determined
that the provisions in this section are
consistent with the Federal regulations
at 43 CFR 4.1130 through 4.1141.
Therefore, we approve the changes to
OAC 1513–3–10.
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
1513–3–11
43979
Motions
This revision moves the provision at
section (B), which allows a party to
make a written motion requesting a
hearing to be conducted before the full
Commission, rather than before a
hearing officer for the Commission, to
section 1513–3–18, Reports and
recommendations of the hearing officer.
The revision to this section also
provides that objections to jurisdiction
are non-waivable and may be raised at
any point in an appeal, consistent with
the Ohio Rules of Civil Procedure.
OSMRE Finding: We have determined
that the provisions in this section do not
have direct Federal counterparts.
However, they are not inconsistent with
the Federal regulations at 43 CFR
4.1112. Therefore, we approve OAC
1513–3–11.
1513–3–12
Pre-Hearing Procedures
This revision allows the Commission
or its hearing officer, at its own
initiative, or at the request of any party,
to schedule and hold pre-hearing
conferences on issues on appeal.
OSMRE Response: We have
determined that the proposed change to
this section is consistent with 43 CFR
4.1121(b). Therefore, we are approving
the change to OAC 1513–3–12.
1513–3–14
Hearings
Site Views and Location of
This rule specifies the locations of
Commission hearings. It also clarifies
the circumstances in which the
Commission will conduct site views of
mining operations, reclamation
operations, or other relevant features.
The rule also explicitly states that the
Commission will control and direct the
manner of conducting a site view.
Specifically, where a site view is
conducted on property subject to a
mining and reclamation permit, parties
must be informed prior to the site view
of any necessary personal protective
equipment, including hard hat, safety
glasses, hearing protection, safety-toed
shoes or boots and additional
equipment that may be required on
mine property as determined by the
mine operator. Additionally, the
Commission reserves the right to limit
the number of persons who participate
in the site view. Additionally, a hearing
related to a cessation of mining or a
motion for temporary relief must be
held in proximity to the subject area of
the hearing for the convenience of the
Commission and the parties. All other
proceedings will continue to be held in
Columbus, Ohio, or at any convenient
public location selected by the
Commission.
E:\FR\FM\29AUR1.SGM
29AUR1
43980
Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations
OSMRE Response: We have
determined that the provision regarding
the location for hearings related to
temporary relief, has no direct Federal
counterpart, but is not inconsistent with
the Federal regulation found at 43 CFR
4.1106, which governs location of
hearing sites, generally. The Federal
regulation states that the administrative
law judge must consider convenience of
the parties in determining the hearing
site. The remaining provisions in this
section do not have Federal
counterparts. However, they are not
inconsistent with SMCRA or its
implementing regulations. Therefore,
we are approving the changes to OAC
1513–3–14.
sradovich on DSK3GMQ082PROD with RULES
1513–3–15 Consolidation of
Proceedings
The Commission is given discretion to
administer consolidated appeals in the
manner it deems most appropriate.
OSMRE Response: We have
determined that the provision in this
section is consistent with the Federal
regulation at 43 CFR 4.1113, which
grants the administrative law judge the
authority to consolidate proceedings.
Therefore, we are approving OAC 1513–
3–15.
1513–3–16 Conduct of Evidentiary
Hearings
This rule applies to any person
participating in an appeal before the
Commission and definitively states that
the Commission will determine the
conduct of the hearing and the order of
the presentation of evidence.
Additionally, it further clarifies that the
Commission is not bound by the formal
rules of evidence as promulgated by the
Ohio Supreme Court. The rule also
establishes a procedure for in-camera
inspection of documents claimed to
contain proprietary business
information or trade secrets.
Additionally, the rule specifically
details the number of copies of
proposed exhibits a party must make
available. The rule also adds a provision
to clarify that a continuing objection is
sufficient to preserve objection to an
area of evidence. In regard to written
testimony, affidavits may be admitted
only if the evidence is otherwise
admissible and all full parties agree that
affidavits may be used in lieu of oral
testimony. This alteration is limiting as
it adds the adjective ‘‘full,’’ thus
excluding certain parties. Parties
wishing to use affidavits in lieu of oral
testimony must serve all full parties
with a copy of the affidavit at least 15
days before a hearing. It is clarified that
in the event a declarant is unavailable,
testimony may be offered in compliance
VerDate Sep<11>2014
16:05 Aug 28, 2018
Jkt 244001
with rule 804 of the Ohio Rules of
Evidence. As proposed, objections to
deposition testimony must be resolved
in accordance with rule 32 of the Ohio
Rules of Civil Procedure. Further, in
instances when a party is attempting to
use written testimony, any full party
must present the Commission a
schedule of objections to the written
testimony prior to the commencement
of the hearing. This is a change to the
former rule that allowed objection at the
hearing following receipt of the
testimony into evidence. Regarding the
presentation of witnesses, the
Commission may require that a witness
be called only once during a hearing
and that the parties conduct all
examinations at the time when the
witness is called to testify. An Ohio
notary may be given authority to
administer oaths and affirmations to
witnesses. Further, the Commission is
given authority to require the parties to
submit written closing arguments, posthearing briefs, or proposed findings of
fact and conclusions of law.
OSMRE Finding: We have determined
that the provisions in this section are
not inconsistent with the Federal
regulations found at 43 CFR 4.1120–
4.1129. Therefore, we are approving the
changes to OAC 1513–3–16.
sufficient to allow the Commission to
issue timely Orders. This amendment
incorporates a proviso to that rule that
in the event a decision before a hearing
officer must be rendered within a
specified time period, the appeal will be
heard by the Commission, rather than
by a hearing officer, unless there has
been a waiver of the right to an
expedited hearing.
OSMRE Findings: We have
determined that the provisions in this
section do not have direct Federal
counterparts. However, these provisions
are not inconsistent with the Federal
regulations at 43 CFR 4.1120 through
4.1129. Therefore, we are approving the
changes to OAC 1513–3–18.
1513–3–19 Decisions of the
Commission
This rule clarifies the procedures the
Commission will follow when issuing
decisions. Additionally, the rule allows
the remission, within 30 days after
issuing a final decision, of pre-paid civil
penalties, where penalties are under
appeal. The rule also provides more
detailed information about the
procedures that will be followed if
errors are found in Commission
decisions. Specifically, during the time
period after a final decision has been
issued by the Commission, clerical
1513–3–17 Voluntary Dismissal and
mistakes in the final decision and errors
Settlement
therein from oversight or omission may
be corrected before an appeal of the
The adjective ‘‘full’’ is added to
Commission’s final decision is filed.
section (B), relative to agreement to
Thereafter, while an appeal is pending
settle. This addition limits settlements
to those where all parties (i.e., appellant, before an appellate court, a final
appellee, and intervenor, if any) agree to decision may be so corrected with leave
of the court. However, the correction of
do so. In the event an appeal is settled
a clerical mistake or error in a final
during the course of a hearing, the
decision does not extend the time for
parties must enter into the record a
statement acknowledging that they have filing a notice of appeal in the appellate
court. Further, this rule extends the time
reached an agreement that all issues
the Commission may remit, transfer, or
have been resolved, and that a
accept payment of an increased penalty
withdrawal of the appeal will be filed.
OSMRE Finding: We have determined assessment amount from fifteen days to
thirty days.
that the provisions in this section are
OSMRE Finding: We have determined
consistent with the Federal regulations
that most of the provisions in this
at 43 CFR 4.1111. Therefore, we are
section do not have direct Federal
approving the changes to OAC 1513–3–
counterparts. However, these provisions
17.
are not inconsistent with SMCRA or its
1513–3–18 Reports and
implementing regulations, nor
Recommendations of the Hearing
inconsistent with Departmental hearings
Officer
and appeals regulations found at 43 CFR
Section 1513–3–11(B), discussed
part 4, subparts B and L. Moreover, the
above, is inserted in this section. This
amendments pertaining to civil
section allows a party to make a written penalties are consistent with the Federal
motion requesting that a hearing be
regulations at 43 CFR 4.1157. Therefore,
conducted before the full Commission,
we are approving the changes to OAC
rather than before a hearing officer for
1513–3–19.
the Commission.
1513–3–20 Costs
The existing regulations required
The former ‘‘Costs’’ section is
Reports and Recommendations of
rescinded. Previously, this section
hearing officers to be submitted to the
allowed the Commission to assess costs
Commission within a time reasonably
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
E:\FR\FM\29AUR1.SGM
29AUR1
Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES
against a party to an appeal. The
Commission does not, sua sponte,
assess such costs, and the rule has not
been used by the Commission.
Moreover, filing fees are not required for
Commission appeals. Additionally, the
award of costs and expenses, following
petition, are addressed fully in the
following section, Awards of Costs and
Expenses.
OSMRE Findings: We have
determined that the provisions removed
by rescission of this section are replaced
by the provisions described in OAC
1513–3–21. As discussed in the OSMRE
Findings for OAC 1513–3–21, we have
determined that the provisions in the
latter section are not inconsistent with
SMCRA or regulations at 43 CFR part 4,
subparts B and L. Therefore, OSMRE
determines the rescission of this section
does not render the Ohio program
inconsistent with the Federal
regulations at 43 CFR 4.1290 through
4.1296, and the rescission is approved.
1513–3–21 Award of Costs and
Expenses
This rule clarifies the previous
version of this rule approved by OSMRE
in 2010. See 75 FR 72947, allowing for
the recovery of costs and expenses,
including attorneys’ fees to certain
parties. The amendment clarifies that
the Commission is also authorized to
hear petitions for costs, including
attorneys’ fees and expenses, where
petitions are filed by the DMRM and
allege bad faith or harassment by
another party. These petitions must
conform to section 1513.13 of the ORC.
Petitions must be filed within 60 days
of receipt of the final decision of the
Commission in the action in which the
fees were incurred. Petitions by the
DMRM must include an affidavit
detailing all costs and expenses,
receipts, and when attorneys’ fees are
requested, evidence that the hours
expended and the fees requested are
reasonable for the appeal and for the
locality. A person served with a copy of
a petition for costs and expenses must
file an answer thereto within 30 days.
Awards of attorney fees are appealable
consistent with the ORC. This rule
clarifies that parties may receive awards
of costs and expenses, including
attorneys’ fees, expert witness fees, and
fees reasonably incurred as a result of
proceedings before the Commission, and
specifies that fees incurred in seeking
fees may also be awarded.
However, the rule at 1513–3–21(D)
clarifies that Ohio’s statute and
regulations relevant to minerals—not
including coal or peat, found within
Chapter 1514 of the Revised Code, do
not include an award of costs and
VerDate Sep<11>2014
16:05 Aug 28, 2018
Jkt 244001
expenses provision similar to those
required in Chapter 1513. Specifically,
Ohio’s rule references the provision
found within section 1514.09 that
specifically explains that attorneys’ fees,
costs, and expenses may not be
recovered for minerals. Chapter 1514 is
not required to be consistent with
SMCRA or its implementing regulations,
as it does not pertain to coal regulation.
Because Chapter 1514 is not part of the
approved Ohio program, OSMRE is not
making a determination on this portion
of the Ohio rule.
OSMRE Findings: We have
determined that the provisions in this
section are no less effective than the
Federal regulations at 43 CFR 4.1290–
4.1296. Therefore, we approve the
changes to OAC 1513–3–21.
1513–3–22
Decisions
Appeals From Commission
This rule clarifies that parties to
actions involving coal mining and
reclamation brought under section 1513
of the ORC may seek review of a
Commission decision in the court of
appeals for the county in which the
activity addressed by the decision of the
Commission occurred, is occurring, or
will occur. Moreover, this rule clarifies
that parties to actions involving
industrial minerals mining and
reclamation and brought under section
1514.09, Representation on commission
for appeals, of the ORC may seek review
of a Commission decision in the court
of common pleas in the county where
the operation addressed by the decision
of the Commission is located, or in the
Franklin County Court of Common
Pleas. However, Chapter 1514 is not
required to be consistent with SMCRA
or its implementing regulations, as it
does not pertain to coal regulation.
Because Chapter 1514 is not part of the
approved Ohio program, OSMRE is not
making a determination on this portion
of the Ohio rule.
Additionally, the rules provide the
Commission with the authority to
control the transcription and
transmission of the record to the
appropriate appellate court.
OSMRE Findings: We have
determined that the provisions in this
section are consistent with Section 526
(a)(2) of SMCRA (30 U.S.C. 1276(a)(2)),
and with the Federal regulations at 30
CFR 775.13(b) and 43 CFR 4.1369.
Therefore, we are approving the changes
to OAC 1513–3–22.
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
43981
IV. Summary and Disposition of
Comments
Public Comments
OSMRE asked for public comments in
the May 20, 2014, Federal Register (79
FR 28854) (Administrative Record No.
OH–2192–04). OSMRE did not receive
any public comments or a request to
hold a public meeting or public hearing.
Federal Agency Comments
Under Federal regulations at 30 CFR
732.17(h)(11)(i) and section 503(b) of
SMCRA, OSMRE requested comments
on the amendment from various Federal
agencies with an actual or potential
interest in the Ohio program
(Administrative Record No. OH–2192–
02). Specifically, OSMRE solicited
comment from the Advisory Council on
Historic Preservation, the United States
Department of Labor, the United States
Fish and Wildlife Service, the United
States Environmental Protection Agency
(EPA), the Ohio Historic Preservation
Office, and the United States
Department of Agriculture. OSMRE did
not receive any response to the request
for comments.
Environmental Protection Agency
Concurrence and Comments
Pursuant to the Federal regulations at
30 CFR 732.17(h)(11)(ii), OSMRE is
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 in the submittal pertain to air
or water quality standards. Therefore,
we did not ask EPA to concur on the
amendment, and as stated above, EPA
did not provide comment.
State Historical Preservation Officer
(SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are
required to request comments from the
SHPO and ACHP on amendments that
may have an effect on historic
properties. OSMRE requested comments
on the Ohio amendment
(Administrative Record Number OH–
2192–02). We did not receive any
comments.
V. OSMRE’s Decision
Based on the above findings, we
approve the amendment Ohio sent us on
November 6, 2013, (Administrative
Record Number OH–2192–01) with the
exception of two provisions. We are not
approving the sentence in section 1513–
E:\FR\FM\29AUR1.SGM
29AUR1
43982
Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations
3–07(A), as explained above: ‘‘A
petition for leave to intervene must be
filed at least ten days prior to the
beginning of an evidentiary hearing on
the merits of an appeal, unless waived
by the commission for extraordinary
cause.’’ We are also not approving the
deletion of 1513–3–07(D)(4), as
explained above: ‘‘The effect of
intervention on the agency’s
implementation of its statutory
mandate.’’
To implement this decision, we are
amending the Federal regulations at 30
CFR part 935 that codify decisions
concerning the Ohio program. In
accordance with the Administrative
Procedure Act, this rule will take effect
30 days after the date of publication.
Section 503(a) of SMCRA requires that
the State’s program demonstrate that the
State has the capability of carrying out
the provisions of the Act and meeting its
purposes. SMCRA requires consistency
of State and Federal standards.
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. Other
changes implemented through this final
rule notice are administrative in nature
and have no takings implications.
Executive Order 12866—Regulatory
Planning and Review
Pursuant to Office of Management and
Budget (OMB) Guidance dated October
12, 1993, the approval of state program
amendments is exempted from OMB
review under Executive Order 12866.
sradovich on DSK3GMQ082PROD with RULES
Executive Order 12988—Civil Justice
Reform
The Department of the Interior has
reviewed this rule as required by section
3(a) of Executive Order 12988. The
Department determined that this
Federal Register notice meets the
criteria of Section 3 of Executive Order
12988, which is intended to ensure that
the agency review its legislation and
proposed regulations to eliminate
drafting errors and ambiguity; that the
agency write its legislation and
regulations to minimize litigation; and
that the agency’s legislation and
regulations provide a clear legal
standard for affected conduct rather
than a general standard, and promote
simplification and burden reduction.
Because Section 3 focuses on the quality
of Federal legislation and regulations,
the Department limited its review under
this Executive Order to the quality of
this Federal Register notice and to
VerDate Sep<11>2014
16:05 Aug 28, 2018
Jkt 244001
changes to the Federal regulations. The
review under this Executive Order did
not extend to the language of the State
regulatory program or to the program
amendment that the State of Ohio
drafted.
Executive Order 13132—Federalism
This rule is not a ‘‘[p]olicy that [has]
Federalism implications’’ as defined by
section 1(a) of Executive Order 13132
because it does not have ‘‘substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ Instead, this rule
approves an amendment to the Ohio
program submitted and drafted by that
State. OSMRE reviewed the submission
with fundamental federalism principles
in mind as set forth in sections 2 and
3 of the Executive Order and with the
principles of cooperative federalism set
forth in SMCRA. See, e.g., 30 U.S.C.
1201(f). As such, pursuant to section
503(a)(1) and (7) (30 U.S.C. 1253(a)(1)
and (7)), OSMRE reviewed the program
amendment to ensure that it is ‘‘in
accordance with’’ the requirements of
SMCRA is ‘‘consistent with’’ the
regulations issued by the Secretary
pursuant to SMCRA.
Executive Order 13175—Consultation
and Coordination With Indian Tribal
Government
In accordance with Executive Order
13175, OSMRE has evaluated the
potential effects of this rule on Federally
recognized Indian tribes and has
determined that the rule does not have
substantial direct effects on one or more
Indian tribes, or 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 pertains to the Ohio
regulatory program and does not involve
a Federal program involving Indian
lands or Indian tribes in any way.
Executive Order 13211—Regulations
That Significantly Affect the Supply,
Distribution, or Use of Energy
Executive Order 13211 of May 18,
2001, 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 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,
PO 00000
Frm 00022
Fmt 4700
Sfmt 4700
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, including
amendments thereto, do not constitute
major Federal actions within the
meaning of section 102(2)(C) of the
National Environmental Policy Act (42
U.S.C. 4332(2)(C)). It is further
documented in the DOI Departmental
Manual at 516 DM 13.5 that agency
decisions on approval of State
regulatory programs do not constitute
major Federal actions.
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 impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). Ohio’s submittal,
which is the subject of this rule, is based
upon counterpart 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
counterpart 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
E:\FR\FM\29AUR1.SGM
29AUR1
Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations
Dated: August 13, 2018.
Thomas Shope,
Regional Director, Appalachian Region.
counterpart 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
counterpart 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.
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:
■
beginning of an evidentiary hearing on
the merits of an appeal, unless waived
by the commission for extraordinary
cause.’’
(b) In OAC 1513–3–07(D) (4), we are
not approving the deletion of the
following sentence: ‘‘The effect of
intervention on the agency’s
implementation of its statutory
mandate.’’
■
3. 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:
§ 935.12 State statutory, regulatory, and
proposed program amendments not
approved.
§ 935.15 Approval of Ohio regulatory
program amendments.
■
Authority: 30 U.S.C. 1201 et seq.
2. Section 935.12 is added to read as
follows:
(a) In OAC 1513–3–07(A), we are not
approving the following sentence: ‘‘A
petition for leave to intervene must be
filed at least ten days prior to the
*
*
*
*
*
Original amendment submission date
Date of final publication
Citation/description
*
*
November 6, 2013 .................................
*
*
August 29, 2018 .....................................
*
*
*
OAC 1513–3–01 through 1513–3–22, except for a portion
of OAC 1513–3–07(A) and the deletion of OAC 1513–3–
07(D)(4).
Click on Open Docket Folder on the line
associated with this deviation.
[FR Doc. 2018–18706 Filed 8–28–18; 8:45 am]
BILLING CODE 4310–05–P
If
you have questions on this temporary
deviation, call or email Judy K. LeungYee, Bridge Management Specialist,
First District Bridge Branch, U.S. Coast
Guard; telephone 212–514–4336, email
Judy.K.Leung-Yee@uscg.mil.
FOR FURTHER INFORMATION CONTACT:
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
Drawbridge Operation Regulation;
Passaic River, Harrison, NJ
Coast Guard, DHS.
Notice of deviation from
drawbridge regulation.
AGENCY:
ACTION:
The Coast Guard has issued a
temporary deviation from the operating
schedule that governs the Route 280
Bridge across the Passaic River, mile
5.8, at Harrison, New Jersey. The
deviation is necessary to perform steel
repairs at the lift span. This deviation
allows the bridge to remain closed
during the construction period.
DATES: This deviation is effective from
12:01 a.m. on October 1, 2018, until
11:59 p.m. on December 14, 2018.
ADDRESSES: The docket for this
deviation, USCG–2018–0779, is
available at https://www.regulations.gov.
Type the docket number in the
‘‘SEARCH’’ box and click ‘‘SEARCH.’’
SUMMARY:
VerDate Sep<11>2014
16:05 Aug 28, 2018
The owner
of the bridge, New Jersey Department of
Transportation, requested a temporary
deviation in order to perform steel
repairs at the lift span.
The Route 280 Bridge across the
Passaic River, mile 5.8, at Harrison, New
Jersey is a vertical lift bridge with a
vertical clearance of 35 feet at mean
high water and 40 feet at mean low
water in the closed position. The
existing drawbridge operating regulation
is listed at 33 CFR 117.739(h).
This temporary deviation will allow
the Route 280 Bridge to remain in the
closed position from 12:01 a.m. on
October 1, 2018, to 11:59 p.m. on
December 14, 2018. The deviation will
have minimal effect on navigation. The
waterway is transited by recreational
and commercial vessels. Coordination
with waterway users has indicated no
objection to the closure of the draw.
Vessels able to pass through the bridge
in the closed position may do so at any
time. The bridge will not be able to open
SUPPLEMENTARY INFORMATION:
[Docket No. USCG–2018–0779]
sradovich on DSK3GMQ082PROD with RULES
43983
Jkt 244001
PO 00000
Frm 00023
Fmt 4700
Sfmt 9990
for emergencies. There is no immediate
alternate route for vessels to pass.
The Coast Guard will also inform the
users of the waterways through our
Local and Broadcast Notices to Mariners
of the change in operating schedule for
the bridge so that vessel operators can
arrange their transits to minimize any
impact caused by the temporary
deviation.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the effective period of this
temporary deviation. This deviation
from the operating regulations is
authorized under 33 CFR 117.35.
Dated: August 23, 2018.
C.J. Bisignano,
Supervisory Bridge Management Specialist,
First Coast Guard District.
[FR Doc. 2018–18638 Filed 8–28–18; 8:45 am]
BILLING CODE 9110–04–P
E:\FR\FM\29AUR1.SGM
29AUR1
Agencies
[Federal Register Volume 83, Number 168 (Wednesday, August 29, 2018)]
[Rules and Regulations]
[Pages 43977-43983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18706]
[[Page 43977]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[SATS No. OH-255-FOR; Docket No. OSM-2013-0012;
S1D1SSS08011000SX066A000178S180110; S2D2SSS08011000SX066A00017XS501520]
Ohio Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment with two exceptions.
-----------------------------------------------------------------------
SUMMARY: The Office of Surface Mining Reclamation and Enforcement
(OSMRE) is approving, with two exceptions, an amendment to the Ohio
regulatory program (the Ohio program) under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). Ohio's submission
demonstrates its intent to revise its program by amending the Ohio
Reclamation Commission's (the Commission) procedural rules. By
submission of the amended procedural rules, found within Ohio
Administrative Code (OAC) at sections 1513-3-01 through 1513-3-22, Ohio
proposed to revise the Ohio program pursuant to the additional
flexibility afforded by the revised Federal regulations at 30 CFR
732.17, and SMCRA, as amended. As a result of review of the Ohio
program, the proposed amendment, and an opportunity for public
comments, OSMRE has determined that the majority of the submittal is no
less stringent than SMCRA and no less effective than the corresponding
regulations. The two revisions not approved by OSMRE are found within
OAC at section 1513-3-07(A), which relates to intervention. OSMRE's
rationale for not approving these proposed revisions is explained in
depth below.
DATES: Effective Date: September 28, 2018.
FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Chief, Pittsburgh Field
Division, OSMRE, Three Parkway Center, 2nd Floor, Pittsburgh,
Pennsylvania 15220. Telephone: (412) 937-2827. Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations
I. Background on the Ohio Program
Section 503(a) of SMCRA allows 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, state laws and
regulations that govern surface coal mining and reclamation operations
in accordance with the Act and consistent with the Federal regulations.
See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the
Secretary of the Interior conditionally approved the Ohio program
effective August 16, 1982. Notice of the conditional approval of Ohio's
permanent regulatory program was published in the Federal Register on
August 10, 1982 (47 FR 34688). You can also find later actions
concerning Ohio's program and program amendments at 30 CFR 935.11,
935.15, and 935.30.
II. Submission of the Proposed Amendment
For background purposes, the Commission is an adjudicatory board
established pursuant to Ohio Revised Code (ORC) section 1513.05. The
Commission is the office to which administrative appeals may be filed
by any person claiming to be aggrieved or adversely affected by a
decision of the Ohio Department of Natural Resources, Chief of the
Division of Mineral Resources Management (DMRM), relating to mining and
reclamation issues. Following an adjudicatory hearing, the Commission
affirms, vacates, or modifies the DMRM Chief's decision. The Commission
is comprised of eight members appointed by the Governor of Ohio.
Members represent a variety of interests relevant to mining and
reclamation issues. The Commission adopts rules to govern its
procedures. The Commission's rules are found at OAC section 1513-3-01
through 1513-3-22 and are the subject of the current amendment to the
Ohio program. By letter dated November 6, 2013, Ohio submitted an
amendment to its program, (Administrative Record No. OH-2192-01).
Ohio's submittal was prompted by requirements within the Ohio statute
that all state agencies must review their administrative rules every
five years. Consistent with this requirement, the Commission revised
its rules to ensure an orderly, efficient, and effective appeal
process. By submitting the amendment to OSMRE, Ohio exercised its
ability to revise the Ohio program pursuant to the additional
flexibility afforded by the revised Federal regulations at 30 CFR
732.17, and SMCRA, as amended, to improve operational efficiency of the
Ohio program and to ensure Ohio's proposed provisions are consistent,
and in accordance, with SMCRA and are no less effective than the
corresponding Federal regulations.
OSMRE announced receipt of the proposed amendment in the May 20,
2014, Federal Register (79 FR 28854). In the same document, OSMRE
opened the public comment period and provided an opportunity for a
public hearing or meeting.
OSMRE did not hold a public hearing or meeting, as neither were
requested. The public comment period closed on June 19, 2014. OSMRE did
not receive any comments.
III. Summary of the Ohio Amendment and OSMRE's Findings on the
Amendment
Following is a summary of various provisions of the amendment that
Ohio submitted, as well as OSMRE's findings on whether those provisions
are consistent, and in accordance, with SMCRA and are no less effective
than the Federal regulations at 30 CFR 732.15 and 732.17. As described
below, OSMRE is approving the amendment with the exception of two
provisions in the proposed rule, one at section 1513-3-07(A), relating
to the intervention of a party, and the other at 1513-3-07(D)(4),
relating to the effect of intervention. Any revisions that we do not
specifically discuss below concern non-substantive wording or editorial
changes.
1513-3-01 Definitions
These changes clarify existing definitions and provide additional
definitions. Specifically, the definition of ``appellant'' is clarified
to explicitly state that actions of the DMRM Chief are subject to
appeal to the Commission. The definition of ``final order'' clarifies
that the resolution of matters presented on appeal will be in writing
and consistent with section 1513-3-19 of the OAC. The definition of
``full party'' is added. This definition will define ``full party'' to
include the appellant, the appellee, and any intervenor participating
in an appeal as defined by the OAC at section 1513-3-07 entitled,
``Intervention.'' Additionally, the term, ``interested persons in an
appeal pending before the Commission'' is added. This term, as
approved, defines interested person as the appellant, the appellee, any
intervenors, or and any other persons who have notified the Commission
of an interest in a pending appeal and have requested to be notified of
hearings in said appeal. The
[[Page 43978]]
definition of ``intervenor'' is modified to remove the word ``one'' and
replace it with the term, ``any person.'' The definition of ``person''
is modified to encompass limited liability companies. Within the
definition of ``regular business hours'' the terms ``chairman'' and
``vice-chairman'' are replaced by ``chairperson'' and ``vice-
chairperson,'' respectively. The remaining modifications renumber the
terms to facilitate the addition of new terms.
OSMRE Finding: We have determined that the definitions of
``appellant,'' ``final order,'' ``full party,'' ``interested persons in
an appeal pending before the Commission,'' and ``regular business
hours'' do not have Federal counterparts. However, they are not
inconsistent with SMCRA or the Federal regulations. Therefore, we
approve these definitions. The revised definition of ``intervenor''
remains consistent with its Federal counterpart at 43 CFR 4.1110 and is
therefore approved. There is no direct Federal counterpart to the
revised portion of Ohio's definition of ``person,'' as the Federal
counterpart does not specifically include limited liability companies.
However, the Federal definition does include corporations and
partnerships; limited liability companies are essentially amalgams of
those two business structures. Therefore, the change to the State's
definition does not render it inconsistent with the Federal regulations
at 30 CFR 700.5, and we are approving the change.
1513-3-02 Internal Regulations
Paragraph (B) of Section 1513-3-02, which is entitled, ``Quorum,''
is modified to clarify the conditions for satisfying quorum
requirements. Four members of the Commission must be present to qualify
as a quorum, and an action by the Commission is not valid unless at
least four members concur.
Additionally, the rule clarifies the procedure in the event
concurrence is not reached. As amended, four members must agree that
concurrence is not met. Further, when concurrence is not met, the
existing record of proceedings is to be submitted to all members of the
Commission who did not attend any portion of the proceedings. These
members may determine if they wish to participate in the appeal.
Following review of the record, they must participate in the rendering
of a decision. The provision for a tied vote is eliminated.
The amendment provides that, in the event that a concurrence cannot
be reached, a decision must be rendered stating such and an Order must
be issued affirming the action of the DMRM Chief under review.
Furthermore, the rule clarifies that in the event a Commission
member considered as part of the quorum misses any part of the
proceeding, he or she must review the record before participating in
the rendering of a decision. Audio-electronic hearings before the
Commission constitute the official record of the hearing. However,
other methods of creating the official record are permitted upon the
Commission's discretion, by joint motion of the parties, or by motion
of a party and subsequent approval by the Commission. Additionally, the
issuance and service of subpoenas must comply with the Ohio Rules of
Civil Procedure, and, as applicable, section 119.094 of the ORC,
including its requirement that a fee must be paid to witnesses outside
the county in which a hearing must be held.
OSMRE Finding: We have determined that the provisions in this
section do not have direct Federal counterparts. However, they are not
inconsistent with the Federal regulations at 43 CFR 4.2, which governs,
generally, membership of administrative boards and decisions of those
boards. Therefore, we approve the proposed changes to OAC 1513-3-02.
1513-3-03 Appearance and Practice Before the Commission
The rule clarifies that any party may appear on their own behalf or
may be represented by an attorney at law admitted to practice according
to Ohio law. This includes the admittance of attorneys pro hac vice.
OSMRE Finding: We have determined that the provisions in this
section are consistent with the Federal regulations at 43 CFR 1.3 and
4.3, which govern, respectively, who may practice in Departmental
administrative proceedings, and representation before appeals boards.
Therefore, we approve the changes to OAC 1513-3-03.
1513-3-04 Appeals to the Reclamation Commission
Although the majority of the changes to this section are clerical
and non-substantive, the rule clarifies that email addresses, if
available, should be included in the notice of appeal. Additionally,
appellants must include a copy of the written notice, order or decision
of the DMRM Chief to be reviewed. Appellants are required to comply
with the requirements of section 1513.02 of the ORC, pertaining to the
power and duties of the DMRM Chief, and must include and forward the
amount of any penalty for placement in a penalty fund. The rule adds a
section describing information that the appellant may include in the
notice of appeal. Appellants may, but are not required to, identify the
area to which the notice, Order, or decision relates; state whether or
not the Commission is requested to view the site; and state whether or
not the appellant waives the right to have the hearing within the time
frames established in section 1513.13(B), Appeal of notice of
violation, order or decision to reclamation commission of the ORC.
When filing a notice of appeal pertaining to the review of a
decision to approve or disapprove a permit application, an appellant
must comply with section 1513.07, Coal mining and reclamation permit of
the ORC, and must file the notice of appeal within 30 days of notice of
the DMRM Chief's determination.
It is further clarified that a notice of appeal is deemed filed
when complete notice has been provided. Further, a notice of appeal may
be amended without leave of the Commission during the time allowed for
original filing. However, amendment of a notice of appeal may not be
employed to cure jurisdictional defects in the filing following the
close of this time period. Following the close of this time period, a
notice of appeal may be amended by leave of the Commission.
OSMRE Finding: We have determined that the provisions in this
section are consistent with the Federal regulations governing the
varying types of administrative appeals of decisions of OSMRE. These
regulations are at 43 CFR 4.1107, 4.1115, 4.1153, 4.1164, 4.1184,
4.1263, 4.1282, 4.1303, 4.1363, 4.1372, and 4.1382. Therefore, we
approve the changes to OAC 1513-3-04.
1513-3-05 Filing and Service of Papers
This section of the rule clarifies that the filing of a notice of
appeal must conform to section 1513.13 of the ORC, Appeal to the
Commission. The rule alters the definition of when a notice of appeal
is deemed filed. The proposed amendment states that a notice of appeal
will be deemed filed when received or if the notice of appeal is sent
by certified mail, registered mail, or express mail, it will be deemed
filed on the date of the postmark placed upon the sender's receipt by
the postal service. However, documents requesting temporary relief are
deemed filed when received by the Commission. Additionally, all filings
other than a notice of appeal or a request for temporary relief, that
are not sent to the Commission by certified mail, registered
[[Page 43979]]
mail, or express mail will be deemed filed with the Commission on the
day on which the filings are received, and those that are sent by such
means, will be deemed filed on the postmark date placed upon the
sender's receipt by the postal service. Further, following initiation
of an appeal, the Commission may, through order, establish a filing and
service protocol, which may include the electronic transmission of
documents.
OSMRE Finding: We have determined that the provisions in this
section are consistent with the Federal regulations at 43 CFR 4.1107,
which governs the filing of documents, and 43 CFR 4.1109, which governs
service of documents. Therefore, we approve the changes to OAC 1513-3-
05.
1513-3-06 Computation and Extension of Time
The majority of the changes to this section are non-substantive and
consist of renumbering for clarity. However, section (C)(1) is altered
to definitively read that the Commission may not lengthen or reduce the
time period allowed for any response to, or filing of, a request for
temporary relief.
OSMRE Finding: We have determined that the provisions in this
section do not have direct Federal counterparts. However, they are not
inconsistent with the Federal regulations at 43 CFR 4.1261 and 4.1264,
which govern, respectively, applications for temporary relief and
responses thereto. Therefore, we approve the changes to OAC 1513-3-06.
1513-3-07 Intervention
Ohio submitted a revision to this rule to require that any person
seeking leave to intervene in an appeal before the Commission must do
so within ten days prior to the beginning of an evidentiary hearing on
the merits of an appeal, unless waived by the Commission for
extraordinary cause. OSMRE is not approving this section of the
amendment as it is inconsistent with the corresponding provisions of
the Federal regulations found at 43 CFR 4.1110(a). The Federal
counterpart allows any person, including a State or OSMRE, to petition
to intervene at any stage of a proceeding. The provision proposed by
Ohio prejudices a potential intervenor by imposing time limits on
petitions to intervene. Although the proposed revision would allow
intervention after the ten days preceding an evidentiary hearing, upon
waiver by the Commission, the potential intervenor must still
demonstrate extraordinary cause. This additional hurdle is not imposed
by the Federal counterpart. Therefore, OSMRE is not approving the
following sentence in section 1513-3-07(A), of the proposed amendment:
``A petition for leave to intervene must be filed at least ten days
prior to the beginning of an evidentiary hearing on the merits of an
appeal, unless waived by the commission for extraordinary cause.''
Also, the deletion of 1513-3-07(D)(4) is less effective than the
Federal regulations found at 43 CFR 4.1110. This deletion would prevent
the Commission from considering the effect of intervention on the
agency's ability to implement its statutory mandates. However, the
Federal regulation at 43 CFR 4.1110(d)(4) explicitly allows the IBLA to
consider this effect in deciding whether intervention is appropriate.
The deletion of this provision in the OAC would render the Ohio program
less effective by preventing its statutory mandate from receiving due
consideration in Commission decisions on intervention. Therefore, OSMRE
is not approving the deletion of OAC 1513-3-07(D)(4).
There is only one other substantive amendment to this section. The
change, at section 1513-13-07(F), will allow the filing of amicus
briefs and oral argument at hearing by amicus curiae upon leave by, and
at the discretion of, the Commission. This provision does not have
direct Federal counterparts. However, it is not inconsistent with
relevant sections of 43 CFR part 4. Therefore, this provision of OAC
1513-3-07 is approved.
1513-3-08 Temporary Relief
The amendments to this section are non-substantive and primarily
consist of language to make references gender neutral. Therefore, the
amendments are approved.
1513-3-10 Discovery
Previous discovery rules are amended to clarify parties to an
appeal may obtain discovery in accordance with the provisions of rules
26 through 36 of the Ohio Rules of Civil Procedure. Additionally, the
rule explains that all parties, including intervenors, are subject to
discovery and that discovery from non-parties must be done through
subpoena. In the event a party fails to obey an order to compel or
permit discovery issued by the Commission, the Commission may make such
orders in regard to the failure as it deems just.
OSMRE Finding: We have determined that the provisions in this
section are consistent with the Federal regulations at 43 CFR 4.1130
through 4.1141. Therefore, we approve the changes to OAC 1513-3-10.
1513-3-11 Motions
This revision moves the provision at section (B), which allows a
party to make a written motion requesting a hearing to be conducted
before the full Commission, rather than before a hearing officer for
the Commission, to section 1513-3-18, Reports and recommendations of
the hearing officer. The revision to this section also provides that
objections to jurisdiction are non-waivable and may be raised at any
point in an appeal, consistent with the Ohio Rules of Civil Procedure.
OSMRE Finding: We have determined that the provisions in this
section do not have direct Federal counterparts. However, they are not
inconsistent with the Federal regulations at 43 CFR 4.1112. Therefore,
we approve OAC 1513-3-11.
1513-3-12 Pre-Hearing Procedures
This revision allows the Commission or its hearing officer, at its
own initiative, or at the request of any party, to schedule and hold
pre-hearing conferences on issues on appeal.
OSMRE Response: We have determined that the proposed change to this
section is consistent with 43 CFR 4.1121(b). Therefore, we are
approving the change to OAC 1513-3-12.
1513-3-14 Site Views and Location of Hearings
This rule specifies the locations of Commission hearings. It also
clarifies the circumstances in which the Commission will conduct site
views of mining operations, reclamation operations, or other relevant
features. The rule also explicitly states that the Commission will
control and direct the manner of conducting a site view. Specifically,
where a site view is conducted on property subject to a mining and
reclamation permit, parties must be informed prior to the site view of
any necessary personal protective equipment, including hard hat, safety
glasses, hearing protection, safety-toed shoes or boots and additional
equipment that may be required on mine property as determined by the
mine operator. Additionally, the Commission reserves the right to limit
the number of persons who participate in the site view. Additionally, a
hearing related to a cessation of mining or a motion for temporary
relief must be held in proximity to the subject area of the hearing for
the convenience of the Commission and the parties. All other
proceedings will continue to be held in Columbus, Ohio, or at any
convenient public location selected by the Commission.
[[Page 43980]]
OSMRE Response: We have determined that the provision regarding the
location for hearings related to temporary relief, has no direct
Federal counterpart, but is not inconsistent with the Federal
regulation found at 43 CFR 4.1106, which governs location of hearing
sites, generally. The Federal regulation states that the administrative
law judge must consider convenience of the parties in determining the
hearing site. The remaining provisions in this section do not have
Federal counterparts. However, they are not inconsistent with SMCRA or
its implementing regulations. Therefore, we are approving the changes
to OAC 1513-3-14.
1513-3-15 Consolidation of Proceedings
The Commission is given discretion to administer consolidated
appeals in the manner it deems most appropriate.
OSMRE Response: We have determined that the provision in this
section is consistent with the Federal regulation at 43 CFR 4.1113,
which grants the administrative law judge the authority to consolidate
proceedings. Therefore, we are approving OAC 1513-3-15.
1513-3-16 Conduct of Evidentiary Hearings
This rule applies to any person participating in an appeal before
the Commission and definitively states that the Commission will
determine the conduct of the hearing and the order of the presentation
of evidence. Additionally, it further clarifies that the Commission is
not bound by the formal rules of evidence as promulgated by the Ohio
Supreme Court. The rule also establishes a procedure for in-camera
inspection of documents claimed to contain proprietary business
information or trade secrets. Additionally, the rule specifically
details the number of copies of proposed exhibits a party must make
available. The rule also adds a provision to clarify that a continuing
objection is sufficient to preserve objection to an area of evidence.
In regard to written testimony, affidavits may be admitted only if the
evidence is otherwise admissible and all full parties agree that
affidavits may be used in lieu of oral testimony. This alteration is
limiting as it adds the adjective ``full,'' thus excluding certain
parties. Parties wishing to use affidavits in lieu of oral testimony
must serve all full parties with a copy of the affidavit at least 15
days before a hearing. It is clarified that in the event a declarant is
unavailable, testimony may be offered in compliance with rule 804 of
the Ohio Rules of Evidence. As proposed, objections to deposition
testimony must be resolved in accordance with rule 32 of the Ohio Rules
of Civil Procedure. Further, in instances when a party is attempting to
use written testimony, any full party must present the Commission a
schedule of objections to the written testimony prior to the
commencement of the hearing. This is a change to the former rule that
allowed objection at the hearing following receipt of the testimony
into evidence. Regarding the presentation of witnesses, the Commission
may require that a witness be called only once during a hearing and
that the parties conduct all examinations at the time when the witness
is called to testify. An Ohio notary may be given authority to
administer oaths and affirmations to witnesses. Further, the Commission
is given authority to require the parties to submit written closing
arguments, post-hearing briefs, or proposed findings of fact and
conclusions of law.
OSMRE Finding: We have determined that the provisions in this
section are not inconsistent with the Federal regulations found at 43
CFR 4.1120-4.1129. Therefore, we are approving the changes to OAC 1513-
3-16.
1513-3-17 Voluntary Dismissal and Settlement
The adjective ``full'' is added to section (B), relative to
agreement to settle. This addition limits settlements to those where
all parties (i.e., appellant, appellee, and intervenor, if any) agree
to do so. In the event an appeal is settled during the course of a
hearing, the parties must enter into the record a statement
acknowledging that they have reached an agreement that all issues have
been resolved, and that a withdrawal of the appeal will be filed.
OSMRE Finding: We have determined that the provisions in this
section are consistent with the Federal regulations at 43 CFR 4.1111.
Therefore, we are approving the changes to OAC 1513-3-17.
1513-3-18 Reports and Recommendations of the Hearing Officer
Section 1513-3-11(B), discussed above, is inserted in this section.
This section allows a party to make a written motion requesting that a
hearing be conducted before the full Commission, rather than before a
hearing officer for the Commission.
The existing regulations required Reports and Recommendations of
hearing officers to be submitted to the Commission within a time
reasonably sufficient to allow the Commission to issue timely Orders.
This amendment incorporates a proviso to that rule that in the event a
decision before a hearing officer must be rendered within a specified
time period, the appeal will be heard by the Commission, rather than by
a hearing officer, unless there has been a waiver of the right to an
expedited hearing.
OSMRE Findings: We have determined that the provisions in this
section do not have direct Federal counterparts. However, these
provisions are not inconsistent with the Federal regulations at 43 CFR
4.1120 through 4.1129. Therefore, we are approving the changes to OAC
1513-3-18.
1513-3-19 Decisions of the Commission
This rule clarifies the procedures the Commission will follow when
issuing decisions. Additionally, the rule allows the remission, within
30 days after issuing a final decision, of pre-paid civil penalties,
where penalties are under appeal. The rule also provides more detailed
information about the procedures that will be followed if errors are
found in Commission decisions. Specifically, during the time period
after a final decision has been issued by the Commission, clerical
mistakes in the final decision and errors therein from oversight or
omission may be corrected before an appeal of the Commission's final
decision is filed. Thereafter, while an appeal is pending before an
appellate court, a final decision may be so corrected with leave of the
court. However, the correction of a clerical mistake or error in a
final decision does not extend the time for filing a notice of appeal
in the appellate court. Further, this rule extends the time the
Commission may remit, transfer, or accept payment of an increased
penalty assessment amount from fifteen days to thirty days.
OSMRE Finding: We have determined that most of the provisions in
this section do not have direct Federal counterparts. However, these
provisions are not inconsistent with SMCRA or its implementing
regulations, nor inconsistent with Departmental hearings and appeals
regulations found at 43 CFR part 4, subparts B and L. Moreover, the
amendments pertaining to civil penalties are consistent with the
Federal regulations at 43 CFR 4.1157. Therefore, we are approving the
changes to OAC 1513-3-19.
1513-3-20 Costs
The former ``Costs'' section is rescinded. Previously, this section
allowed the Commission to assess costs
[[Page 43981]]
against a party to an appeal. The Commission does not, sua sponte,
assess such costs, and the rule has not been used by the Commission.
Moreover, filing fees are not required for Commission appeals.
Additionally, the award of costs and expenses, following petition, are
addressed fully in the following section, Awards of Costs and Expenses.
OSMRE Findings: We have determined that the provisions removed by
rescission of this section are replaced by the provisions described in
OAC 1513-3-21. As discussed in the OSMRE Findings for OAC 1513-3-21, we
have determined that the provisions in the latter section are not
inconsistent with SMCRA or regulations at 43 CFR part 4, subparts B and
L. Therefore, OSMRE determines the rescission of this section does not
render the Ohio program inconsistent with the Federal regulations at 43
CFR 4.1290 through 4.1296, and the rescission is approved.
1513-3-21 Award of Costs and Expenses
This rule clarifies the previous version of this rule approved by
OSMRE in 2010. See 75 FR 72947, allowing for the recovery of costs and
expenses, including attorneys' fees to certain parties. The amendment
clarifies that the Commission is also authorized to hear petitions for
costs, including attorneys' fees and expenses, where petitions are
filed by the DMRM and allege bad faith or harassment by another party.
These petitions must conform to section 1513.13 of the ORC. Petitions
must be filed within 60 days of receipt of the final decision of the
Commission in the action in which the fees were incurred. Petitions by
the DMRM must include an affidavit detailing all costs and expenses,
receipts, and when attorneys' fees are requested, evidence that the
hours expended and the fees requested are reasonable for the appeal and
for the locality. A person served with a copy of a petition for costs
and expenses must file an answer thereto within 30 days. Awards of
attorney fees are appealable consistent with the ORC. This rule
clarifies that parties may receive awards of costs and expenses,
including attorneys' fees, expert witness fees, and fees reasonably
incurred as a result of proceedings before the Commission, and
specifies that fees incurred in seeking fees may also be awarded.
However, the rule at 1513-3-21(D) clarifies that Ohio's statute and
regulations relevant to minerals--not including coal or peat, found
within Chapter 1514 of the Revised Code, do not include an award of
costs and expenses provision similar to those required in Chapter 1513.
Specifically, Ohio's rule references the provision found within section
1514.09 that specifically explains that attorneys' fees, costs, and
expenses may not be recovered for minerals. Chapter 1514 is not
required to be consistent with SMCRA or its implementing regulations,
as it does not pertain to coal regulation. Because Chapter 1514 is not
part of the approved Ohio program, OSMRE is not making a determination
on this portion of the Ohio rule.
OSMRE Findings: We have determined that the provisions in this
section are no less effective than the Federal regulations at 43 CFR
4.1290-4.1296. Therefore, we approve the changes to OAC 1513-3-21.
1513-3-22 Appeals From Commission Decisions
This rule clarifies that parties to actions involving coal mining
and reclamation brought under section 1513 of the ORC may seek review
of a Commission decision in the court of appeals for the county in
which the activity addressed by the decision of the Commission
occurred, is occurring, or will occur. Moreover, this rule clarifies
that parties to actions involving industrial minerals mining and
reclamation and brought under section 1514.09, Representation on
commission for appeals, of the ORC may seek review of a Commission
decision in the court of common pleas in the county where the operation
addressed by the decision of the Commission is located, or in the
Franklin County Court of Common Pleas. However, Chapter 1514 is not
required to be consistent with SMCRA or its implementing regulations,
as it does not pertain to coal regulation. Because Chapter 1514 is not
part of the approved Ohio program, OSMRE is not making a determination
on this portion of the Ohio rule.
Additionally, the rules provide the Commission with the authority
to control the transcription and transmission of the record to the
appropriate appellate court.
OSMRE Findings: We have determined that the provisions in this
section are consistent with Section 526 (a)(2) of SMCRA (30 U.S.C.
1276(a)(2)), and with the Federal regulations at 30 CFR 775.13(b) and
43 CFR 4.1369. Therefore, we are approving the changes to OAC 1513-3-
22.
IV. Summary and Disposition of Comments
Public Comments
OSMRE asked for public comments in the May 20, 2014, Federal
Register (79 FR 28854) (Administrative Record No. OH-2192-04). OSMRE
did not receive any public comments or a request to hold a public
meeting or public hearing.
Federal Agency Comments
Under Federal regulations at 30 CFR 732.17(h)(11)(i) and section
503(b) of SMCRA, OSMRE requested comments on the amendment from various
Federal agencies with an actual or potential interest in the Ohio
program (Administrative Record No. OH-2192-02). Specifically, OSMRE
solicited comment from the Advisory Council on Historic Preservation,
the United States Department of Labor, the United States Fish and
Wildlife Service, the United States Environmental Protection Agency
(EPA), the Ohio Historic Preservation Office, and the United States
Department of Agriculture. OSMRE did not receive any response to the
request for comments.
Environmental Protection Agency Concurrence and Comments
Pursuant to the Federal regulations at 30 CFR 732.17(h)(11)(ii),
OSMRE is 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 in the submittal pertain
to air or water quality standards. Therefore, we did not ask EPA to
concur on the amendment, and as stated above, EPA did not provide
comment.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. OSMRE requested comments on the Ohio amendment
(Administrative Record Number OH-2192-02). We did not receive any
comments.
V. OSMRE's Decision
Based on the above findings, we approve the amendment Ohio sent us
on November 6, 2013, (Administrative Record Number OH-2192-01) with the
exception of two provisions. We are not approving the sentence in
section 1513-
[[Page 43982]]
3-07(A), as explained above: ``A petition for leave to intervene must
be filed at least ten days prior to the beginning of an evidentiary
hearing on the merits of an appeal, unless waived by the commission for
extraordinary cause.'' We are also not approving the deletion of 1513-
3-07(D)(4), as explained above: ``The effect of intervention on the
agency's implementation of its statutory mandate.''
To implement this decision, we are amending the Federal regulations
at 30 CFR part 935 that codify decisions concerning the Ohio program.
In accordance with the Administrative Procedure Act, this rule will
take effect 30 days after the date of publication. Section 503(a) of
SMCRA requires that the State's program demonstrate that the State has
the capability of carrying out the provisions of the Act and meeting
its purposes. SMCRA requires consistency of State and Federal
standards.
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. Other changes implemented through this final rule notice
are administrative in nature and have no takings implications.
Executive Order 12866--Regulatory Planning and Review
Pursuant to Office of Management and Budget (OMB) Guidance dated
October 12, 1993, the approval of state program amendments is exempted
from OMB review under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by section 3(a) of Executive Order 12988. The Department determined
that this Federal Register notice meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and proposed regulations to eliminate drafting
errors and ambiguity; that the agency write its legislation and
regulations to minimize litigation; and that the agency's legislation
and regulations provide a clear legal standard for affected conduct
rather than a general standard, and promote simplification and burden
reduction. Because Section 3 focuses on the quality of Federal
legislation and regulations, the Department limited its review under
this Executive Order to the quality of this Federal Register notice and
to changes to the Federal regulations. The review under this Executive
Order did not extend to the language of the State regulatory program or
to the program amendment that the State of Ohio drafted.
Executive Order 13132--Federalism
This rule is not a ``[p]olicy that [has] Federalism implications''
as defined by section 1(a) of Executive Order 13132 because it does not
have ``substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.''
Instead, this rule approves an amendment to the Ohio program submitted
and drafted by that State. OSMRE reviewed the submission with
fundamental federalism principles in mind as set forth in sections 2
and 3 of the Executive Order and with the principles of cooperative
federalism set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such,
pursuant to section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and (7)),
OSMRE reviewed the program amendment to ensure that it is ``in
accordance with'' the requirements of SMCRA is ``consistent with'' the
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Government
In accordance with Executive Order 13175, OSMRE has evaluated the
potential effects of this rule on Federally recognized Indian tribes
and has determined that the rule does not have substantial direct
effects on one or more Indian tribes, or 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 pertains to the
Ohio regulatory program and does not involve a Federal program
involving Indian lands or Indian tribes in any way.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
Executive Order 13211 of May 18, 2001, 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
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,
including amendments thereto, do not constitute major Federal actions
within the meaning of section 102(2)(C) of the National Environmental
Policy Act (42 U.S.C. 4332(2)(C)). It is further documented in the DOI
Departmental Manual at 516 DM 13.5 that agency decisions on approval of
State regulatory programs do not constitute major Federal actions.
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 impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Ohio's submittal, which is the subject of this rule, is based upon
counterpart 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 counterpart 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
[[Page 43983]]
counterpart 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 counterpart
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: August 13, 2018.
Thomas 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
0
1. The authority citation for part 935 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 935.12 is added to read as follows:
Sec. 935.12 State statutory, regulatory, and proposed program
amendments not approved.
(a) In OAC 1513-3-07(A), we are not approving the following
sentence: ``A petition for leave to intervene must be filed at least
ten days prior to the beginning of an evidentiary hearing on the merits
of an appeal, unless waived by the commission for extraordinary
cause.''
(b) In OAC 1513-3-07(D) (4), we are not approving the deletion of
the following sentence: ``The effect of intervention on the agency's
implementation of its statutory mandate.''
0
3. 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.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final Citation/
date publication description
------------------------------------------------------------------------
* * * * * * *
November 6, 2013................ August 29, 2018... OAC 1513-3-01
through 1513-3-
22, except for a
portion of OAC
1513-3-07(A) and
the deletion of
OAC 1513-3-
07(D)(4).
------------------------------------------------------------------------
[FR Doc. 2018-18706 Filed 8-28-18; 8:45 am]
BILLING CODE 4310-05-P