Ohio Regulatory Program, 64807-64810 [2023-20348]
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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 935
[SATS No. OH–261–FOR; Docket ID: OSM–
2019–0007; S1D1S SS08011000 SX064A000
234S180110; S2D2S SS08011000
SX064A000 23XS501520]
Ohio Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule, approval of
amendment.
AGENCY:
We, the Office of Surface
Mining Reclamation and Enforcement
(OSMRE), are approving 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
proposed amendment is prompted by
requirements within the Ohio statute
that all agencies must review their
administrative rules every five years.
Consistent with this requirement, the
Ohio Reclamation Commission (the
Commission), proposes an amendment
to its procedural rules in order to ensure
an orderly, efficient, and effective
appeals process.
DATES: The effective date is October 20,
2023.
FOR FURTHER INFORMATION CONTACT: Mr.
Ben Owens, Acting Field Office
Director, Pittsburgh Field Office, 3
Parkway Center, Pittsburgh, PA 15220.
Telephone: (412) 937–2827, Email:
bowens@osmre.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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. Statutory and Executive Order Reviews
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I. Background on the Ohio Program
Section 503(a) of the Act, State
Programs, permits a state to assume
primacy for the regulation of surface
coal mining and reclamation operations
on non-Federal and non-Indian lands
within its borders by demonstrating that
its 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 on August
16, 1982. You can find background
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information on the Ohio program,
including the Secretary’s findings, the
disposition of comments, and
conditions of approval of the Ohio
program in the August 10, 1982, Federal
Register (47 FR 34717). You can also
find later actions concerning the Ohio
program and program amendments at 30
CFR 935.10, State Regulatory Program
Approval; and 935.11, Conditions of
State Regulatory Program Approval; and
935.15, Approval of Ohio Regulatory
Program Amendments.
II. Submission of the Amendment
By letter dated June 13, 2018
(Administrative Record OH–2197–01),
Ohio sent us an amendment regarding
its program under SMCRA (30 U.S.C.
1201 et seq.) to clarify existing
definitions and to provide additional
definitions related to work of the
Commission. This submittal was
prompted by requirements of Sections
106.03 and 119.04 of the Ohio Revised
Code (ORC) that all state agencies must
review their administrate rules every
five years.
For background purposes, the
Commission is an adjudicatory board
established pursuant to ORC 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 in the Ohio Administrative Code
(OAC) at OAC 1513–3–01 through
1513–3–22, and are the subject of the
current amendment.
We announced receipt of the
proposed amendment in the February
25, 2020 Federal Register (85 FR 10636)
(Administrative Record No. OH–2197).
In the same document, we opened the
public comment period and provided an
opportunity for a public hearing or
meeting on the adequacy of the
amendment. No meeting or hearing was
requested, and no public comments
were received. The public comment
period ended on March 11, 2020.
III. OSMRE’s Findings
We made the following findings
concerning the amendment under
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SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17. In making
these findings, we compared Ohio’s
provisions to 43 CFR part 4, which
governs administrative proceedings and
appeals relevant to OSMRE’s actions
under the Federal regulatory program.
We are approving the amendments as
described below. The full text of this
program amendment is available at
www.regulations.gov.
A. Ohio’s revisions to OAC 1513–3–
01 consist of additions and
modifications to the definitions outlined
herein. As a result, renumbering was
also made to facilitate the addition of
new terms.
1. ‘‘Amicus curiae’’. Ohio seeks to add
this term as paragraph (B), describing it
to mean a ‘‘friend of the court.’’ The
amendment also explains the
participation of a non-party amicus
curiae is addressed under OAC 1513–3–
07 (F).
2. ‘‘Ex parte communication’’. Ohio
seeks to add this term as paragraph (J),
describing it to mean ‘‘a communication
between the commission and one party
to an appeal, without the inclusion of
other parties to the appeal.’’ The
amendment also explains that ex parte
contacts and communications are
addressed and prohibited under OAC
1513–3–03 (G).
3. ‘‘In camera’’. Ohio seeks to add this
term as paragraph (N), describing it to
mean ‘‘in private rather than in open
hearing.’’ The amendment also
references OAC 1513–3–16 (C) for in
camera procedures.
4. ‘‘Pro hac vice’’. Ohio seeks to add
this term as paragraph (S), describing it
to mean ‘‘for one particular case’’. In
accordance with OAC 1513–3–03 (A)
and (C), it explains the ability of an outof-state attorney to appear in an appeal
before the commission.
5. ‘‘Subpoena ad testificandum’’. Ohio
seeks to add this term as paragraph (V),
describing it to mean ‘‘a subpoena for
the appearance and testimony of a
witness.’’ The definition also references
the use of this term at OAC 1513–3–02
(I).
6. ‘‘Subpoena duces tecum’’. Ohio
seeks to add this term as paragraph (W),
describing it to mean ‘‘a subpoena
requiring a witness to produce
documents or other items at hearing’’.
The definition also references use of this
term at OAC 1513–3–02 (I).
B. Ohio made typographical, editorial,
and other minor revisions to the
following sections: OAC 1513–3–01(I)
(the definition of ‘‘discovery’’) and (T)
(the definition of ‘‘Regular business
hours’’); OAC 1513–3–02 Internal
Regulations; OAC 1513–3–04 Appeals
to the Reclamation Commission; OAC
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1513–3–05 Filing Service of Papers;
OAC 1513–3–06 Computation and
Extension of Time; OAC 1513–3–11
Motions; OAC 1513–3–14 Site Views an
Location of Hearings; OAC 1513–3–16
Conduct of Evidentiary Hearings; and
OAC 1513–3–22 Appeals from
Commission Decisions.
OSMRE Finding: While the
definitions of ‘‘amicus curiae,’’ ‘‘ex
parte communication,’’ ‘‘in camera,’’
‘‘pro hac vice,’’ ‘‘subpoena ad
testificandum,’’ and ‘‘subpoena duces
tecum’’ are not defined terms in the
equivalent Federal regulations at 43 CFR
part 4, they are used at 43 CFR 4.3 and
4.27. Ohio’s definition of ‘‘amicus
curiae’’ and ‘‘ex parte communication’’
are not inconsistent with the use of
those terms within 43 CFR part 4. The
remaining terms do not appear in 43
CFR part 4 or other relevant regulations
of the Department. However, Ohio’s
definition of ‘‘in camera’’ is not
inconsistent with the process for
protecting certain materials from
disclosure described at 43 CFR 4.31.
Likewise, Ohio’s definition of ‘‘pro hac
vice’’ is not inconsistent with the
standards for who may practice before
the Department at 43 CFR 1.3 and 4.3.
Finally, Ohio’s definitions for
‘‘subpoena ad testificandum’’ and
‘‘subpoena duces tecum’’ are not
inconsistent with the Department’s
subpoena provisions at 43 CFR 4.26.
Therefore, we approve the addition of
these definitions.
Any revisions that we have not
specifically discussed concerning nonsubstantive wording or editorial
changes, including the addition of
paragraph (A)(4) to OAC 1513–3–06
(providing a citation to a provision
defining state holidays), can be found in
the full text of the program amendment
available at www.regulations.gov.
IV. Summary and Disposition of
Comments
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Public Comments
We asked for public comments on the
amendment; however, none were
received.
Federal Agency Comments
On October 1, 2018, under 30 CFR
732.17(h)(11)(i) and section 503(b) of
SMCRA, we requested comments on the
amendment from various Federal
agencies with an actual or potential
interest in the Ohio program
(Administrative Record No. OH–2197).
We did not receive any comments.
Environmental Protection Agency (EPA)
Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we
are required to obtain a written
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concurrence from EPA for those
provisions of the program amendment
that relate to air or water quality
standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et
seq.) or the Clean Air Act (42 U.S.C.
7401 et seq.). None of the revisions that
Ohio proposed to make in this
amendment pertain to air or water
quality standards. Therefore, we did not
ask EPA to concur on the amendment.
However, on October 1, 2018, under 30
CFR 732.17(h)(11)(i), we requested
comments from the EPA on the
amendment (Administrative Record No.
OH–2197). The EPA responded on
November 2, 2018, that the proposed
program amendment does not fall under
the purview of the EPA’s Clean Water
Act (Administrative Record OH–2197–
05).
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 that may have an
effect on historic properties. On October
1, 2018, we requested comments on
Ohio’s amendment (Administrative
Record No. OH–2197). We did not
receive comments from the SHPO or
ACHP.
V. OSMRE’s Decision
Based on the above findings, we are
approving Ohio’s program amendment
submission sent to us on June 13, 2018
(Administrative Record No. OH–2197–
01). 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. Statutory and Executive Order
Reviews
Executive Order 12630—Governmental
Actions and Interference With
Constitutionally Protected Property
Rights
This rule would not effect a taking of
private property or otherwise have
taking implications that would result in
public property being taken for
government use without just
compensation under the law. Therefore,
a takings implication assessment is not
required. This determination is based on
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an analysis of the corresponding Federal
regulations.
Executive Order 12866—Regulatory
Planning and Review and Executive
Order 13563—Improving Regulation
and Regulatory Review
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs in the Office of Management and
Budget (OMB) will review all significant
rules. Pursuant to OMB guidance, dated
October 12, 1993, the approval of State
program amendments is exempted from
OMB review under Executive Order
12866. Executive Order 13563, which
reaffirms and supplements Executive
Order 12866, retains this exemption.
Executive Order 13771—Reducing
Regulation and Controlling Regulatory
Costs
State program amendments are not
regulatory actions under Executive
Order 13771 because they are exempt
from 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 of Executive Order 12988. The
Department determined that this
Federal Register document 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 document and to
changes to the Federal regulations. The
review under this Executive order did
not extend to the language of the
program amendment that the State of
Ohio drafted.
Executive Order 13132—Federalism
This rule has potential Federalism
implications as defined under Section
1(a) of Executive Order 13132.
Executive Order 13132 directs agencies
to ‘‘grant the States the maximum
administrative discretion possible’’ with
respect to Federal statutes and
regulations administered by the States.
Ohio, through its approved regulatory
program, implements and administers
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SMCRA and its implementing
regulations at the state level. This rule
approves an amendment to the Ohio
program submitted and drafted by the
State and, thus, is consistent with the
direction to provide maximum
administrative discretion to States.
Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
The Department of the Interior strives
to strengthen its government-togovernment relationship with Tribes
through a commitment to consultation
with Tribes and recognition of their
right to self-governance and tribal
sovereignty. We have evaluated this rule
under the Department’s consultation
policy and under the criteria in
Executive Order 13175 and have
determined that it has no substantial
direct effects on federally recognized
Tribes or on the distribution of power
and responsibilities between the Federal
government and Tribes. Therefore,
consultation under the Department’s
tribal consultation policy is not
required. The basis for this
determination is that our decision is on
the Ohio program does not regulate
Indian lands or surface coal mining
activities on Indian lands. Indian lands,
as that term is defined under 30 U.S.C.
1291(9) are regulated independently
under the Federal Indian lands program.
Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
Executive Order 13211 requires
agencies to prepare a Statement of
Energy Effects for a rulemaking that is
(1) considered significant under
Executive Order 12866, and (2) likely to
have a significant adverse effect on the
supply, distribution, or use of energy.
Because this rule is exempt from review
under Executive Order 12866 and is not
significant energy action under the
definition in Executive Order 13211, a
Statement of Energy Effects is not
required.
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Executive Order 13045—Protection of
Children From Environmental Health
Risks and Safety Risks
This rule is not subject to Executive
Order 13045 because this is not an
economically significant regulatory
action as defined by Executive Order
12866; and this action does not address
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environmental health or safety risks
disproportionately affecting children.
Small Business Regulatory Enforcement
Fairness Act
National Environmental Policy 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, Federal, State, or
local government agencies, or
geographic regions; 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 on an analysis of
the corresponding Federal regulations,
which were determined not to
constitute a major rule.
Consistent with sections 501(a) and
702(d) of SMCRA (30 U.S.C. 1251(a) and
1292(d), respectively) and the U.S.
Department of the Interior Departmental
Manual, part 516, section 13.5(A), State
program amendments are not major
Federal actions within the meaning of
section 102(2)(C) of the National
Environmental Policy Act (42 U.S.C.
4332(2)(C)).
National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act (15 U.S.C. 3701 et seq.) directs
OSMRE to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. (OMB Circular A–119 at p.
14). This action is not subject to the
requirements of section 12(d) of the
NTTAA because application of those
requirements would be inconsistent
with SMCRA.
Paperwork Reduction Act
This rule does not include requests
and requirements of an individual,
partnership, or corporation to obtain
information and report it to a Federal
agency. As this rule does not contain
information collection requirements, a
submission to the Office of Management
and Budget under the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.)
is not required.
Regulatory Flexibility Act
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.). The State submittal, which is
the subject of this rule, is based upon
corresponding 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 the data and assumptions for the
corresponding Federal regulations.
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Unfunded Mandates Reform Act
This rule does not impose an
unfunded mandate on State, local, or
Tribal governments, or the private sector
of more than $100 million per year. The
rule does not have a significant or
unique effect on State, local, or Tribal
Governments or the private sector. This
determination is based on an analysis of
the corresponding Federal regulations,
which were determined not to impose
an unfunded mandate. Therefore, a
statement containing the information
required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not
required.
List of Subjects in 30 CFR Part 935
Intergovernmental relations, Surface
mining, Underground mining.
Thomas D. Shope,
Regional Director, North Atlantic—
Appalachian Region.
For the reasons set out in the
preamble, 30 CFR part 935 is amended
as set forth below:
PART 935—OHIO
1. The authority citation for part 935
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
2. Section 935.15 is amended in the
table by adding a new entry in
chronological order by ‘‘Date of final
publication’’ to read as follows:
■
§ 935.15 Approval of Ohio regulatory
program amendment.
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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Rules and Regulations
Original amendment submission
date
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June 13, 2018 ................................
Date of final publication
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September 20, 2023 ...................... OAC 1513–3–01 Definitions. Addition of definitions of ‘‘Amicus curiae’’, ‘‘Ex parte communication’’, ‘‘In camera’’, ‘‘Pro hac vice’’,
‘‘Subpoena ad testificandum’’, ‘‘Subpoena duces tecum’’. OAC
1513–3–06(A)(4) Computation and Extension of Time.
[FR Doc. 2023–20348 Filed 9–19–23; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 943
[SATS No. TX–071–FOR; Docket No. OSM–
2019–0011; S1D1S SS08011000 SX064A000
234S180110; S2D2S SS08011000
SX064A000 23XS501520]
Texas Abandoned Mine Land
Reclamation Plan and Regulations
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment.
AGENCY:
We, the Office of Surface
Mining Reclamation and Enforcement
(OSMRE), are approving an amendment
to the Texas abandoned mine land
reclamation plan (Texas Plan) and
regulations under the Surface Mining
Control and Reclamation Act of 1977
(SMCRA or the Act). Texas proposed to
revise its existing Plan and regulations
in response to OSMRE’s request to
amend the Texas Plan and to improve
the readability and efficiency of the
document.
SUMMARY:
DATES:
October 20, 2023.
Joe
Maki, Director, Tulsa Field Office,
Office of Surface Mining Reclamation
and Enforcement, 1645 South 101st East
Avenue, Suite 145, Tulsa, Oklahoma
74128–4629. Telephone (918) 581–6430,
Email: jmaki@osmre.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
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I. Background on the Texas Program and Plan
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 Texas Program
and Plan
The Abandoned Mine Land
Reclamation (AML) Program was
established by Title IV of the Act (30
U.S.C. 1201 et seq.) in response to
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concerns over extensive environmental
damage caused by past coal mining
activities. The program is funded
primarily by a reclamation fee collected
on each ton of coal that is produced.
The money collected is used to finance
the reclamation of abandoned coal
mines and for other authorized
activities. Section 405 of the Act allows
States and Indian Tribes to assume
exclusive responsibility for reclamation
activity within the State or on Indian
lands if they develop and submit for
approval to the Secretary of the Interior
a program (often referred to as a plan)
for the reclamation of coal mines
abandoned or otherwise left in an
inadequate reclamation status at the
time SMCRA was enacted.
On June 23, 1980, the Secretary of the
Interior approved the Texas Plan. You
can find general background
information on the Texas Plan,
including the Secretary’s findings and
the disposition of comments, in the June
23, 1980, Federal Register (45 FR
41937). You can also find later actions
concerning Texas’s AML Program and
Plan amendments at 30 CFR 943.25.
II. Submission of the Amendment
Under the authority of 30 CFR 884.15,
OSMRE by letter dated March 8, 2019
(Administrative Record No. TX–0707),
directed Texas to update the Texas Plan.
In that letter, known as a Part 884 letter,
OSMRE indicated that the Texas Plan
required revisions to meet the
requirements of SMCRA as revised on
December 20, 2006, by the Tax Relief
and Health Care Act of 2006 (Pub. L.
109–432), and in response to changes
made to the implementing Federal
regulations as revised on November 14,
2008 (73 FR 67576), and February 5,
2015 (80 FR 6435). The letter required
Texas to provide either ‘‘(1) a proposed
written Reclamation Plan amendment
or, (2) a description of the Reclamation
Plan amendments you will propose in
response to the revised regulations or,
(3) a detailed statement explaining why
[Texas] believe[d] no amendment to
[Texas’s] Reclamation Plan is
necessary.’’ The letter further provided
Texas with a summary of the changes to
the Federal Program that might require
amendments to the Texas Plan to ensure
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Texas’s program was consistent with
and no less effective than the Federal
Program.
By letter dated December 3, 2019
(Administrative Record No. TX–708),
Texas sent us amendments to the Texas
Plan and conforming State regulations.
The Texas amendments are intended to
address all required amendments
identified in OSMRE’s letter dated
March 8, 2019. Texas’s amendments
will revise the State’s existing AML Plan
and AML program regulations.
We announced receipt of the
proposed amendments in the July 20,
2020, Federal Register (85 FR 43759). In
the same document, we opened a public
comment period and provided an
opportunity for a public hearing or
meeting on the amendment. We
received three comments. We did not
hold a public hearing or meeting
because none were requested. The
public comment period ended on
August 19, 2020.
In compliance with 30 CFR 884.14,
Texas also allowed public input on the
Texas Plan and held a public comment
period during the development of the
State regulations. The comment period
on the regulatory amendments was from
August 23, 2019, to September 23, 2019
(Administrative Record No. TX–708.04).
Texas received no comments. In
addition, in November, 2019, the
Railroad Commission of Texas provided
public notice that it was considering
adoption of the amended and restated
Texas Plan and provided an opportunity
for public input on the proposal.
III. OSMRE’s Findings
A. Texas’s Explanation for Not
Amending Certain Provisions
In response to our Part 884 letter,
Texas stated that several items
mentioned in the Part 884 letter do not
appear to be applicable or require
regulatory or plan changes. We agree.
First, in our Part 884 letter, we
advised that certified States such as
Texas are no longer authorized to set
aside AML funds for future reclamation.
In response, Texas stated that it has not
undertaken future reclamation set aside
and is no longer eligible to do so.
Second, in our Part 884 letter, we
advised of certain changes related to
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]]>Agencies
[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Rules and Regulations]
[Pages 64807-64810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20348]
[[Page 64807]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[SATS No. OH-261-FOR; Docket ID: OSM-2019-0007; S1D1S SS08011000
SX064A000 234S180110; S2D2S SS08011000 SX064A000 23XS501520]
Ohio Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule, approval of amendment.
-----------------------------------------------------------------------
SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving 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 proposed amendment is prompted by
requirements within the Ohio statute that all agencies must review
their administrative rules every five years. Consistent with this
requirement, the Ohio Reclamation Commission (the Commission), proposes
an amendment to its procedural rules in order to ensure an orderly,
efficient, and effective appeals process.
DATES: The effective date is October 20, 2023.
FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Acting Field Office
Director, Pittsburgh Field Office, 3 Parkway Center, Pittsburgh, PA
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. Statutory and Executive Order Reviews
I. Background on the Ohio Program
Section 503(a) of the Act, State Programs, permits a state to
assume primacy for the regulation of surface coal mining and
reclamation operations on non-Federal and non-Indian lands within its
borders by demonstrating that its 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 on August 16, 1982. You can
find background information on the Ohio program, including the
Secretary's findings, the disposition of comments, and conditions of
approval of the Ohio program in the August 10, 1982, Federal Register
(47 FR 34717). You can also find later actions concerning the Ohio
program and program amendments at 30 CFR 935.10, State Regulatory
Program Approval; and 935.11, Conditions of State Regulatory Program
Approval; and 935.15, Approval of Ohio Regulatory Program Amendments.
II. Submission of the Amendment
By letter dated June 13, 2018 (Administrative Record OH-2197-01),
Ohio sent us an amendment regarding its program under SMCRA (30 U.S.C.
1201 et seq.) to clarify existing definitions and to provide additional
definitions related to work of the Commission. This submittal was
prompted by requirements of Sections 106.03 and 119.04 of the Ohio
Revised Code (ORC) that all state agencies must review their
administrate rules every five years.
For background purposes, the Commission is an adjudicatory board
established pursuant to ORC 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
in the Ohio Administrative Code (OAC) at OAC 1513-3-01 through 1513-3-
22, and are the subject of the current amendment.
We announced receipt of the proposed amendment in the February 25,
2020 Federal Register (85 FR 10636) (Administrative Record No. OH-
2197). In the same document, we opened the public comment period and
provided an opportunity for a public hearing or meeting on the adequacy
of the amendment. No meeting or hearing was requested, and no public
comments were received. The public comment period ended on March 11,
2020.
III. OSMRE's Findings
We made the following findings concerning the amendment under SMCRA
and the Federal regulations at 30 CFR 732.15 and 732.17. In making
these findings, we compared Ohio's provisions to 43 CFR part 4, which
governs administrative proceedings and appeals relevant to OSMRE's
actions under the Federal regulatory program. We are approving the
amendments as described below. The full text of this program amendment
is available at www.regulations.gov.
A. Ohio's revisions to OAC 1513-3-01 consist of additions and
modifications to the definitions outlined herein. As a result,
renumbering was also made to facilitate the addition of new terms.
1. ``Amicus curiae''. Ohio seeks to add this term as paragraph (B),
describing it to mean a ``friend of the court.'' The amendment also
explains the participation of a non-party amicus curiae is addressed
under OAC 1513-3-07 (F).
2. ``Ex parte communication''. Ohio seeks to add this term as
paragraph (J), describing it to mean ``a communication between the
commission and one party to an appeal, without the inclusion of other
parties to the appeal.'' The amendment also explains that ex parte
contacts and communications are addressed and prohibited under OAC
1513-3-03 (G).
3. ``In camera''. Ohio seeks to add this term as paragraph (N),
describing it to mean ``in private rather than in open hearing.'' The
amendment also references OAC 1513-3-16 (C) for in camera procedures.
4. ``Pro hac vice''. Ohio seeks to add this term as paragraph (S),
describing it to mean ``for one particular case''. In accordance with
OAC 1513-3-03 (A) and (C), it explains the ability of an out-of-state
attorney to appear in an appeal before the commission.
5. ``Subpoena ad testificandum''. Ohio seeks to add this term as
paragraph (V), describing it to mean ``a subpoena for the appearance
and testimony of a witness.'' The definition also references the use of
this term at OAC 1513-3-02 (I).
6. ``Subpoena duces tecum''. Ohio seeks to add this term as
paragraph (W), describing it to mean ``a subpoena requiring a witness
to produce documents or other items at hearing''. The definition also
references use of this term at OAC 1513-3-02 (I).
B. Ohio made typographical, editorial, and other minor revisions to
the following sections: OAC 1513-3-01(I) (the definition of
``discovery'') and (T) (the definition of ``Regular business hours'');
OAC 1513-3-02 Internal Regulations; OAC 1513-3-04 Appeals to the
Reclamation Commission; OAC
[[Page 64808]]
1513-3-05 Filing Service of Papers; OAC 1513-3-06 Computation and
Extension of Time; OAC 1513-3-11 Motions; OAC 1513-3-14 Site Views an
Location of Hearings; OAC 1513-3-16 Conduct of Evidentiary Hearings;
and OAC 1513-3-22 Appeals from Commission Decisions.
OSMRE Finding: While the definitions of ``amicus curiae,'' ``ex
parte communication,'' ``in camera,'' ``pro hac vice,'' ``subpoena ad
testificandum,'' and ``subpoena duces tecum'' are not defined terms in
the equivalent Federal regulations at 43 CFR part 4, they are used at
43 CFR 4.3 and 4.27. Ohio's definition of ``amicus curiae'' and ``ex
parte communication'' are not inconsistent with the use of those terms
within 43 CFR part 4. The remaining terms do not appear in 43 CFR part
4 or other relevant regulations of the Department. However, Ohio's
definition of ``in camera'' is not inconsistent with the process for
protecting certain materials from disclosure described at 43 CFR 4.31.
Likewise, Ohio's definition of ``pro hac vice'' is not inconsistent
with the standards for who may practice before the Department at 43 CFR
1.3 and 4.3. Finally, Ohio's definitions for ``subpoena ad
testificandum'' and ``subpoena duces tecum'' are not inconsistent with
the Department's subpoena provisions at 43 CFR 4.26. Therefore, we
approve the addition of these definitions.
Any revisions that we have not specifically discussed concerning
non-substantive wording or editorial changes, including the addition of
paragraph (A)(4) to OAC 1513-3-06 (providing a citation to a provision
defining state holidays), can be found in the full text of the program
amendment available at www.regulations.gov.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment; however, none were
received.
Federal Agency Comments
On October 1, 2018, under 30 CFR 732.17(h)(11)(i) and section
503(b) of SMCRA, we requested comments on the amendment from various
Federal agencies with an actual or potential interest in the Ohio
program (Administrative Record No. OH-2197). We did not receive any
comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain a written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.). None of the revisions that Ohio proposed to make
in this amendment pertain to air or water quality standards. Therefore,
we did not ask EPA to concur on the amendment. However, on October 1,
2018, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA
on the amendment (Administrative Record No. OH-2197). The EPA responded
on November 2, 2018, that the proposed program amendment does not fall
under the purview of the EPA's Clean Water Act (Administrative Record
OH-2197-05).
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 that may have an effect on historic properties. On
October 1, 2018, we requested comments on Ohio's amendment
(Administrative Record No. OH-2197). We did not receive comments from
the SHPO or ACHP.
V. OSMRE's Decision
Based on the above findings, we are approving Ohio's program
amendment submission sent to us on June 13, 2018 (Administrative Record
No. OH-2197-01). 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. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not effect a taking of private property or
otherwise have taking implications that would result in public property
being taken for government use without just compensation under the law.
Therefore, a takings implication assessment is not required. This
determination is based on an analysis of the corresponding Federal
regulations.
Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) will
review all significant rules. Pursuant to OMB guidance, dated October
12, 1993, the approval of State program amendments is exempted from OMB
review under Executive Order 12866. Executive Order 13563, which
reaffirms and supplements Executive Order 12866, retains this
exemption.
Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs
State program amendments are not regulatory actions under Executive
Order 13771 because they are exempt from 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 of Executive Order 12988. The Department determined that
this Federal Register document 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 document
and to changes to the Federal regulations. The review under this
Executive order did not extend to the language of the program amendment
that the State of Ohio drafted.
Executive Order 13132--Federalism
This rule has potential Federalism implications as defined under
Section 1(a) of Executive Order 13132. Executive Order 13132 directs
agencies to ``grant the States the maximum administrative discretion
possible'' with respect to Federal statutes and regulations
administered by the States. Ohio, through its approved regulatory
program, implements and administers
[[Page 64809]]
SMCRA and its implementing regulations at the state level. This rule
approves an amendment to the Ohio program submitted and drafted by the
State and, thus, is consistent with the direction to provide maximum
administrative discretion to States.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it has no substantial
direct effects on federally recognized Tribes or on the distribution of
power and responsibilities between the Federal government and Tribes.
Therefore, consultation under the Department's tribal consultation
policy is not required. The basis for this determination is that our
decision is on the Ohio program does not regulate Indian lands or
surface coal mining activities on Indian lands. Indian lands, as that
term is defined under 30 U.S.C. 1291(9) are regulated independently
under the Federal Indian lands program.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking that is (1) considered significant
under Executive Order 12866, and (2) likely to have a significant
adverse effect on the supply, distribution, or use of energy. Because
this rule is exempt from review under Executive Order 12866 and is not
significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866; and this action does not address environmental
health or safety risks disproportionately affecting children.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the U.S. Department of the
Interior Departmental Manual, part 516, section 13.5(A), State program
amendments are not major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. (OMB
Circular A-119 at p. 14). This action is not subject to the
requirements of section 12(d) of the NTTAA because application of those
requirements would be inconsistent with SMCRA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.) is not required.
Regulatory Flexibility Act
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.). The State submittal, which is the subject
of this rule, is based upon corresponding 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 the data and assumptions for the corresponding
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, Federal, State, or local government agencies, or geographic
regions; 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 on an analysis of the
corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal Governments or the private sector. This determination
is based on an analysis of the corresponding Federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects in 30 CFR Part 935
Intergovernmental relations, Surface mining, Underground mining.
Thomas D. Shope,
Regional Director, North Atlantic--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 935.15 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 amendment.
* * * * *
[[Page 64810]]
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
June 13, 2018................. September 20, OAC 1513-3-01
2023. Definitions.
Addition of
definitions of
``Amicus curiae'',
``Ex parte
communication'',
``In camera'', ``Pro
hac vice'',
``Subpoena ad
testificandum'',
``Subpoena duces
tecum''. OAC 1513-3-
06(A)(4) Computation
and Extension of
Time.
------------------------------------------------------------------------
[FR Doc. 2023-20348 Filed 9-19-23; 8:45 am]
BILLING CODE 4310-05-P
