[Federal Register Volume 71, Number 29 (Monday, February 13, 2006)]
[Proposed Rules]
[Pages 7480-7489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-1990]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-250-FOR]


Ohio Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is announcing receipt of a proposed amendment to the Ohio regulatory 
program (the ``Ohio program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Ohio proposes to revise the 
Ohio Revised Code (ORC) regarding changes to the State's alternate 
bonding system (bond pool). The amendment is intended to satisfy a 
program condition codified in the Federal regulations.
    This document gives the times and locations that the Ohio program 
and proposed amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: Written comments must be received on this amendment on or before 
4 p.m. (local time), March 15, 2006 to ensure our consideration. If 
requested, we will hold a public hearing on the amendment on March 10, 
2006. We will accept requests to speak until 4 p.m., local time, on 
February 28, 2006.

ADDRESSES: You may submit comments, identified by ``OH-250-FOR'', by 
any of the following methods:
     E-mail: [email protected]. Include ``OH-250-FOR'' in the 
subject line of the message;
     Mail/Hand Delivery: Mr. George Rieger, Chief, Pittsburgh 
Field Division, Office of Surface Mining Reclamation and Enforcement, 3 
Parkway Center, Pittsburgh, Pennsylvania 15220; or
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading in the 
SUPPLEMENTARY INFORMATION section of this document. You may also 
request to speak at a public hearing by any of the methods listed above 
or by contacting the individual listed under FOR FURTHER INFORMATION 
CONTACT.
    Docket: You may review copies of the Ohio program, this amendment, 
a listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may also receive one free copy of this amendment by 
contacting OSM's Pittsburgh Field Division listed below.

Mr. George Rieger, Chief, Pittsburgh Field Division, Office of Surface 
Mining Reclamation and Enforcement, 3 Parkway Center, Pittsburgh, 
Pennsylvania 15220. Telephone: (412) 937-2153. E-mail: 
[email protected].
Mr. Michael Sponsler, Chief, Division of Mineral Resources Management, 
Ohio Department of Natural Resources, 1855 Fountain Square Court-Bldg. 
H-2, Columbus, Ohio 43224. Telephone: (614) 265-6633.

FOR FURTHER INFORMATION CONTACT: Mr. George Rieger, Chief, Pittsburgh 
Field Division, Telephone: (412) 937-2153. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Ohio Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Ohio Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``a State law which provides 
for the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of the Act * * * and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). 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 16, 1982, Federal Register (47 FR 34687). You can 
also find later actions concerning Ohio's program and program 
amendments at 30 CFR 935.11, 935.15, and 935.16.

II. Description of the Proposed Amendment

    By letter dated December 19, 2005, Ohio sent us a proposed 
amendment to its program (Administrative Record Number OH-2185-07) 
under SMCRA (30 U.S.C. 1201 et seq.). Ohio has submitted a draft bill 
for the Ohio legislature to consider that revises the ORC regarding 
changes to the State's alternate bonding system (bond pool). The 
amendment is intended to satisfy a program condition codified in the 
Federal regulations at 30 CFR 935.11(h). The program condition provides 
that Ohio must submit a program amendment that demonstrates how the 
alternative bonding system will assure timely reclamation at the site 
of all operations for which bond has been forfeited.
    In addition to the revisions described in detail below, the 
amendment submitted by Ohio contains numerous changes to existing 
citations to reflect

[[Page 7481]]

changes in renumbering due to the proposed amendments. Also, numerous 
minor formatting changes have also been proposed to be made throughout 
the provisions. Section 1 of the amendment submittal provides the 
following specific revisions:
    Section 1513.01(W) Definition of ``Performance Security.'' This 
definition is new, and provides as follows:

Performance Security means a form of financial assurance, including, 
without limitation, a surety bond issued by a surety licensed to do 
business in this state; an annuity; cash; a negotiable certificate 
of deposit; an irrevocable letter of credit that automatically 
renews; a negotiable bond of the United States, this state, or a 
municipal corporation in this state; a trust fund of which the state 
is named a conditional beneficiary; or other form of financial 
guarantee or financial assurance that is acceptable to the chief.

    Section 1513.02(A)(5) is amended by deleting the word ``bond'' and 
adding in its place the word ``security.''
    Section 1513.07(A)(2) is amended in the last sentence by deleting 
the words ``bond coverage'' and adding in their place the words 
``performance security.''
    Section 1513.07(B)(1) is amended by deleting the existing language 
and renumbering the subdivisions.
    Section 1513.07(B)(2)(e)(i) is amended by adding the words 
``performance security'' between the words ``mining bond'' and the 
words ``or similar security.''
    Section 1513.07(B)(2)(e)(ii) is amended by adding the words 
``performance security'' between the words ``coal mining surface bond'' 
and the words ``or similar security.''
    Section 1513.07(E)(6) is amended by revising the phrase ``surface 
mining bond, or security deposited'' by adding the words ``performance 
security'' and ``similar.'' As amended the phrase is as follows: 
``surface mining bond performance security or similar security 
deposited.''
    Section 1513.07(E)(7)(f)(iv) is amended by revising the phrase 
``surface mining bond, or security deposited'' by adding the words 
``performance security'' and ``similar.'' As amended the phrase is as 
follows: ``surface mining bond performance security or similar security 
deposited.''
    Section 1513.071(A) is amended by adding the words ``of the 
division of mineral resources management'' immediately following the 
word ``chief'' in the first sentence. Also in the first sentence, the 
word ``his'' is deleted and replaced by the words ``the applicant's.''
    Section 1513.071(B) is amended by adding the words ``the chief's'' 
in place of the word ``his'' that is being deleted in the third 
sentence. Also, the word ``bond'' is deleted and replaced by the word 
``security'' in the second from last sentence.
    Section 1513.08 has been amended by deleting some language and 
adding a lot of new language. As amended, section 1513.08 provides as 
follows:
    Sec. 1513.08. (A) After a coal mining and reclamation permit 
application has been approved, but before the permit is issued, the 
applicant shall file with the chief of the division of mineral 
resources management, on a form prescribed and furnished by the chief, 
the performance security required under this section.
    (B) Using the information contained in the permit application; the 
requirements contained in the approved permit and reclamation plan; 
and, after considering the topography, geology, hydrology, and the 
revegetation potential of the area of the approved permit, the probable 
difficulty of reclamation; the chief shall determine the estimated cost 
of reclamation under the initial term of the permit if the reclamation 
has to be performed by the division of mineral resources management in 
the event of forfeiture of the performance security by the applicant. 
The chief shall send written notice of the amount of the estimated cost 
of reclamation by certified mail to the applicant. The applicant shall 
send written notice to the chief indicating the method by which the 
applicant will provide the performance security pursuant to division 
(C) of this section. Applicants for preparation plants or coal refuse 
disposal areas not located within the permit area of a producing mine 
shall provide performance security in accordance with division (C)(1) 
of this section in the full amount of the estimated cost of reclamation 
as determined by the chief.
    (C) The applicant shall provide the performance security in an 
amount using one of the following methods:
    (1) If the applicant elects to provide performance security without 
reliance on the reclamation forfeiture fund created in section 1513.18 
of the Revised Code, the amount of the estimated cost of reclamation as 
determined by the chief under division (B) of this section for the 
increments of land on which the operator will conduct coal mining and 
reclamation under the initial term of the permit as indicated in the 
application;
    (2) If the applicant elects to provide performance security 
together with reliance on the reclamation forfeiture fund through 
payment of the additional tax on the severance of coal that is levied 
under division (A)(8) of section 5749.02 of the Revised Code, an amount 
of twenty-five hundred dollars per acre of land on which the operator 
will conduct coal mining and reclamation under the initial term of the 
permit as indicated in the application. In order to be eligible to rely 
upon the reclamation forfeiture fund for a portion of the performance 
security, the applicant must have held a permit to mine coal in Ohio 
for a minimum of five (5) years. In the event of forfeiture of 
performance security that was provided in accordance with division 
(C)(2) of this section, the difference between the amount of that 
performance security and the estimated cost of reclamation as 
determined by the chief under division (B) of this section shall be 
obtained from money in the reclamation forfeiture fund as needed to 
complete the reclamation. The performance security provided under 
division (C) of this section for the entire area to be mined under one 
permit issued under this chapter shall not be less than ten thousand 
dollars. The performance security shall cover areas of land affected by 
mining within or immediately adjacent to the permitted area, so long as 
the total number of acres does not exceed the number of acres for which 
the performance security is provided. However, the authority for the 
performance security to cover areas of land immediately adjacent to the 
permitted area does not authorize a permittee to mine areas outside an 
approved permit area. As succeeding increments of coal mining and 
reclamation operations are to be initiated and conducted within the 
permit area, the permittee shall file with the chief additional 
performance security to cover the increments in accordance with this 
section. If a permittee intends to mine areas outside the approved 
permit area, the permittee shall provide additional performance 
security in accordance with this section to cover the areas to be 
mined.
    If the performance security is required under this section for a 
coal preparation plant or coal refuse disposal area that is in 
existence on the effective date of this amendment and that is not 
located within a permitted area of a mine, the permittee shall provide 
the performance security not later than one year after the effective 
date of this amendment.
    (D) A permittee's liability under the performance security shall be 
limited to the obligations established under the permit, which include 
completion of the reclamation plan in order to make the land capable of 
supporting the postmining land use that was approved in the permit. The 
period of liability under the performance security shall be

[[Page 7482]]

for the duration of the coal mining and reclamation operation and for a 
period coincident with the operator's responsibility for revegetation 
requirements under section 1513.16 of the Revised Code.
    (E) The amount of a permittee's performance security may be 
adjusted by the chief as the land that is affected by mining increases 
or decreases or if the cost of reclamation increases or decreases. If 
performance security that was provided in accordance with division 
(C)(2) of this section and the chief has issued a failure to abate 
cessation order for non-contemporaneous reclamation on a permit, the 
chief may require that the performance security provided by the 
permittee on said permit be increased from twenty five hundred dollars 
per acre of land to the amount of five thousand dollars per acre of 
land. The chief shall notify the permittee, each surety, and any person 
who has a property interest in the performance security and who has 
requested to be notified of any proposed adjustment to the performance 
security. The permittee may request an informal conference with the 
chief concerning the proposed adjustment, and the chief shall provide 
such an informal conference. If the chief increases the amount of 
performance security under this division, the permittee shall provide 
additional performance security in an amount determined by the chief. 
If the chief decreases the amount of performance security under this 
division, the chief shall determine the amount of the reduction of the 
performance security and send written notice of the amount of reduction 
to the permittee. The permittee may reduce the amount of the 
performance security in the amount determined by the chief.
    (F) A permittee may request a reduction in the amount of the 
performance security by submitting to the chief documentation proving 
that the amount of the performance security provided by the permittee 
exceeds the estimated cost of reclamation if the reclamation would have 
to be performed by the division in the event of forfeiture of the 
performance security. The chief shall examine the documentation and 
determine whether the permittee's performance security exceeds the 
estimated cost of reclamation. If the chief determines that the 
performance security exceeds that estimated cost, the chief shall 
determine the amount of the reduction of the performance security and 
send written notice of the amount to the permittee. The permittee may 
reduce the amount of the performance security in the amount determined 
by the chief. Adjustments in the amount of performance security under 
this division shall not be considered release of performance security 
and are not subject to section 1513.16 of the Revised Code.
    (G) If the performance security is a bond, it shall be executed by 
the operator and a surety licensed to do business in this state. If the 
performance security is a cash deposit or negotiable certificates of 
deposit of a bank or savings and loan association, the bank or savings 
and loan association shall be licensed and operating in this state. The 
cash deposit or market value of the securities shall be equal to or 
greater than the amount of the performance security required under this 
section. The chief shall review the performance security document and 
approve or disapprove the document. The chief shall notify the 
applicant of the chief's determination.
    (H) If the performance security is a bond, the chief may accept the 
bond of the applicant itself without separate surety when the applicant 
demonstrates to the satisfaction of the chief the existence of a 
suitable agent to receive service of process and a history of financial 
solvency and continuous operation sufficient for authorization to self-
insure or bond the amount.
    (I) Performance security provided under this section may be held in 
trust, provided that the state is the conditional beneficiary of the 
trust and the custodian of the performance security held in trust is a 
bank, trust company, or other financial institution that is licensed 
and operating in this state. The chief shall review the trust document 
and approve or disapprove the document. The chief shall notify the 
applicant of the chief's determination.
    (J) If a surety, bank, savings and loan association, trust company, 
or other financial institution that holds the performance security 
required under this section becomes insolvent, the permittee shall 
notify the chief of the insolvency, and the chief shall order the 
permittee to submit a plan for replacement performance security within 
thirty days after receipt of notice from the chief. If the permittee 
provided performance security in accordance with division (C)(1) of 
this section, the permittee shall provide the replacement performance 
security within ninety days after receipt of notice from the chief. If 
the permittee provided performance security in accordance with division 
(C)(2) of this section, the permittee shall provide the replacement 
performance security within one year after receipt of notice from the 
chief, and, for a period of one year after the permittee's receipt of 
notice from the chief or until the permittee provides the replacement 
performance security, whichever occurs first, money in the reclamation 
forfeiture fund shall be the permittee's replacement performance 
security in an amount not to exceed the estimated cost of reclamation 
as determined by the chief.
    (K) A permittee's responsibility for repairing material damage 
resulting from subsidence, including replacement of water supplies, may 
be satisfied by utilizing appropriate terms and conditions for 
liability insurance required under this Chapter in lieu of the 
permittee's performance security to assure the financial responsibility 
to comply with this Chapter.
    (L) If the performance security otherwise equals or exceeds that 
estimated cost of reclamation, the chief may authorize any interest or 
other earnings on the performance security provided under this section 
be paid to the permittee.
    Section 1513.081 is new and provides as follows:
    Sec. 1513.081. If an operator becomes insolvent, the division of 
mineral resources management shall have a priority lien in front of all 
other interested creditors against the assets of that operator for the 
amount of any reclamation that is required as a result of the 
operator's mining activities. The chief of the division of mineral 
resources management shall file a statement in the office of the county 
recorder of each county in which the mined land lies of the estimated 
cost to reclaim the land. Estimated costs shall include direct and 
indirect costs of the development, design, construction, management, 
and administration of the reclamation. The statement shall constitute a 
lien on the assets of the operator as of the date of the filing. The 
lien shall continue in force so long as any portion of the lien remains 
unpaid or until the chief issues a certificate of release of the lien. 
If the chief issues a certificate of release of the lien, the chief 
shall file a certificate of release in the office of each applicable 
county recorder.
    (B) The chief promptly shall issue a certificate of release under 
any of the following circumstances:
    (1) Upon the repayment in full of the money that is necessary to 
complete the reclamation;
    (2) Upon the transfer of an existing permit that includes the areas 
of the surface mine for which reclamation was not completed.
    (3) Any other circumstances that the chief determines to be in the 
best interests of the state.

[[Page 7483]]

    (C) The chief may modify the amount of a lien under this section. 
If the chief modifies a lien, the chief shall file a statement in the 
office of the county recorder of each applicable county of the new 
amount of the lien. However, the chief shall not extinguish a lien 
under this section until the required reclamation is completed and the 
chief issues a certificate approving the reclamation.
    (D) The chief may authorize a closing agent to hold a certificate 
of release in escrow for a period not to exceed one hundred eighty days 
for the purpose of facilitating the transfer of unreclaimed mine land.
    (E) All money from the collection of liens under this section shall 
be deposited in the state treasury to the credit of the reclamation 
forfeiture fund created in section 1513.18 of the Revised Code.
    Section 1513.16(A)(15)(d) is amended by deleting the word ``bond'' 
and adding in its place the words ``performance security.''
    Section 1513.16(A)(21)(b) is amended by deleting the word 
``bonded'' in the first sentence. In addition, the first sentence is 
amended by adding the words ``for which performance security has been 
applied'' at the end of the sentence.
    Section 1513.16(F)(1) has been amended in the first sentence by 
deleting the words ``bond or deposit'' and replacing those words with 
the word ``security.'' In the second sentence, the words ``bond or 
deposit'' are deleted and replaced by the words ``performance 
security.'' In the third sentence, the word ``bond'' is deleted in two 
locations and replaced with the words ``performance security.'' In the 
fourth and fifth sentences, the words ``bond'' are deleted and replaced 
with the words ``performance security.''
    Section 1513.16(F)(2) is amended in the first sentence by deleting 
the words ``bond or deposit'' and replacing those words with the words 
``performance security.'' In the last sentence, the words ``bond or 
deposit'' are deleted and replaced by the word ``security.''
    Section 1513.16(F)(3) is amended by deleting the words ``bond or 
deposit'' and replacing those words with the words ``performance 
security.''
    Section 1513.16(F)(3)(a) is amended by deleting the words ``a 
bonded'' and replacing those words with the word ``an.'' In addition, 
the words ``for which performance security has been provided'' have 
been added immediately before the words ``in accordance with the 
approved reclamation plan.'' Also, the words ``bond or deposit'' are 
deleted in two places and replaced with the words ``performance 
security.''
    Section 1513.16(F)(3)(b) is amended by deleting the words ``bond or 
deposit'' and ``bond'' in several locations and replacing those words 
with the words ``performance security.''
    Section 1513.16(F)(3)(c) is amended by deleting the words ``bond'' 
in several locations and replacing that word with the words 
``performance security'' or ``security.''
    Sections 1513.16(F)(4) through (F)(7) are amended by deleting the 
words ``bond or deposit'' and ``bond'' in several locations and 
replacing those words with the words ``performance security'' or 
``security.''
    Sections 1513.16(F)(8) and (F)(9) are new and provide as follows:
    (8)(a) Except as provided in division (F)(8)(c) of this section, if 
the chief determines that a permittee is responsible for mine drainage 
that requires water treatment after reclamation is completed under the 
terms of the permit or that a permittee must provide an alternative 
water supply after reclamation is completed under the terms of the 
permit, the permittee shall provide alternative financial security in 
an amount determined by the chief prior to the release of the remaining 
portion of performance security under division (F)(3)(c) of this 
section. The alternative financial security shall be in an amount that 
is equal to or greater than the present value of the estimated cost 
over time to develop and implement mine drainage plans and provide 
water treatment or in an amount that is necessary to provide and 
maintain an alternative water supply, as applicable. The alternative 
financial security shall include a contract, trust, or other agreement 
or mechanism that is enforceable under law to provide long-term water 
treatment or a long-term alternative water supply, or both.
    (b) The chief shall adopt rules in accordance with Chapter 119. of 
the Revised Code that are necessary for the administration of division 
(F)(8)(a) of this section.
    (c) Division (F)(8)(a) of this section does not apply while the 
chief's determination of a permittee's responsibility under that 
division is the subject of a good faith administrative or judicial 
appeal contesting the validity of the determination. If after 
completion of the appeal there is an enforceable administrative or 
judicial decision affirming or modifying the chief's determination, the 
permittee shall provide the alternative financial security in an amount 
established in the administrative or judicial decision.
    (9) Final release of the performance security in accordance with 
division (F)(3)(c) of this section terminates the jurisdiction of the 
chief under this chapter over the reclaimed site of a surface coal 
mining and reclamation operation or applicable portion of an operation. 
The chief may reassert jurisdiction over such a site only if the chief 
demonstrates in writing with evidence that the release was based on 
fraud, collusion, or misrepresentation of a material fact. Any person 
with an interest that is or may be adversely affected by the chief's 
determination may appeal the determination to the reclamation 
commission in accordance with section 1513.13 of the Revised Code.
    Section 1513.16(G) is amended by deleting the word ``bond'' and 
replacing that word with the words ``performance security.''
    Section 1513.17(A)(6) is amended by deleting the word ``bond'' and 
replacing that word with the words ``performance security.''
    Section 1513.171 is new and provides as follows:
    Sec. 1513.171. (A) For the purpose of claiming a credit under 
section 5749.11 of the Revised Code, an operator with a valid permit 
issued under section 1513.07 of the Revised Code may submit an 
application to the chief of the division of mineral resources 
management to perform reclamation on land or water resources that are 
not within the area of the applicant's permit and that have been 
adversely affected by past coal mining where the performance security 
was forfeited. The chief shall provide the application form. The 
application shall include all of the following:
    (1) The operator's name, address, and telephone number;
    (2) The valid permit number of the operator;
    (3) An identification of the area or areas to be reclaimed;
    (4) An identification of the owner of the land;
    (5) A reclamation plan that describes the work to be done to 
reclaim the land or water resources. The plan shall include a 
description of how the plan is consistent with local physical, 
environmental, and climatological conditions and the measures to be 
taken during the reclamation to ensure the protection of water systems.
    (6) An estimate of the total cost of the reclamation;
    (7) An estimate of the timetables for accomplishing the 
reclamation;
    (8) Any other requirements that the chief prescribes by rule. The 
chief shall approve, disapprove, or approve the

[[Page 7484]]

application with modifications concerning the proposed reclamation 
work. If the chief approves the application, the applicant may commence 
reclamation in accordance with the timetables included in the 
application. Upon the completion of the reclamation to the satisfaction 
of the chief, the chief shall issue a numbered reclamation tax credit 
certificate showing the amount of the credit and the identity of the 
recipient.
    (B) The chief shall determine the amount of the credit in 
accordance wit[h] this section and rules adopted under it. The amount 
of the credit shall be equal to the cost that the division of mineral 
resource management would have expended from the reclamation forfeiture 
fund created in section 1513.18 of the Revised Code to complete the 
reclamation.
    (C) The chief shall adopt rules in accordance with Chapter 119. of 
the Revised Code that are necessary to administer this section. The 
rules shall establish all of the following:
    (1) A procedure that the chief shall use to determine the amount of 
the credit issued under this section;
    (2) A procedure by which the chief may obtain consent of the owners 
of land or water resources to allow reclamation work for purposes of 
this section;
    (3) A procedure for delivery of notice to the owners of land or 
water resources on which the reclamation work is to be performed. The 
rules shall require the notice to include the date on which the 
reclamation work is scheduled to begin.
    Section 1513.18(B) is revised by deleting the following words in 
the first sentence: ``moneys transferred to it under this division from 
the unreclaimed lands fund created in section 1513.30 of the Revised 
Code, any.'' The first sentence is also revised by adding the following 
words following the phrase ``reserve fund created in that section:'' 
``investment earnings of the fund, fines collected under 1513.181.'' 
Additionally, the last sentence in the first paragraph is deleted. 
Finally, the last paragraph is deleted. As revised, section 1513.18(B) 
provides as follows:
    (B) The fund shall consist of any moneys transferred to it under 
section 1513.181 [1513.18.1] of the Revised Code from the coal mining 
and reclamation reserve fund created in that section, investment 
earnings of the fund, fines collected under 1513.181 and moneys 
collected and reedited to it pursuant to section 5749.02 of the Revised 
Code. Disbursements from the fund shall be made by the chief for the 
purpose of reclaiming areas that an operator has affected by mining and 
failed to reclaim under a coal mining and reclamation permit issued 
under this chapter or under a surface mining permit issued under 
Chapter 1514. of the Revised Code.
    The chief may expend moneys from the fund to pay necessary 
administrative costs, including engineering and design services, 
incurred by the division of mineral resources management in reclaiming 
these areas. Expenditures from the fund to pay such administrative 
costs need not be made under contract.
    Section 1513.18(C) is revised in the last sentence by adding the 
words ``or trustee, if the performance security is held in trust'' 
between the words ``hired by the surety'' and the words ``to complete 
reclamation.''
    Section 1513.18(D) is revised by deleting some language and adding 
a lot of new language to provide as follows:
    (D) The chief shall expend money credited to the reclamation 
forfeiture fund from the forfeiture of the performance security 
applicable to an area of land to pay for the cost of the reclamation of 
the land. If the performance security for the area of land was provided 
under division (C)(1) of section 1513.08 of the Revised Code, the chief 
shall use the money from the forfeited performance security to complete 
the reclamation that the operator failed to do under the operator's 
applicable coal mining and reclamation permit issued under this 
chapter. If the performance security for the area of land was provided 
under division (C)(2) of section 1513.08 of the Revised Code, the chief 
shall use the money from the forfeited performance security to complete 
the reclamation that the operator failed to do under the operator's 
applicable coal mining and reclamation permit issued under this 
chapter. However, if the money credited to the reclamation forfeiture 
fund from the forfeiture of the performance security provided under 
division (C)(2) of section 1513.08 of the Revised Code is not 
sufficient to complete the reclamation, the chief may expend money 
credited to the reclamation forfeiture fund under section 5749.02 of 
the Revised Code or transferred to the fund under section 1513.181 of 
the Revised Code to complete the reclamation. The chief shall not 
expend money from the fund in an amount that exceeds the difference 
between the amount of the performance security provided under division 
(C)(2) of section 1513.08 of the Revised Code and the estimated cost of 
reclamation as determined by the chief under division (B) of that 
section.
    Money from the reclamation forfeiture fund provided under division 
(C)(2) of section 1513.08 of the Revised Code shall not be used for 
reclamation of land or water resources affected by material damage from 
subsidence, mine drainage that requires extended water treatment after 
reclamation is completed under the terms of the permit, or coal 
preparation plants or coal refuse disposal areas not located within a 
permitted area of a mine.
    Section 1513.18(E) is amended in the last sentence by deleting the 
word ``bond'' and replacing that word with the words ``performance 
security.''
    Section 1513.18(H) is new and provides as follows:
    (H) The treasurer of the state shall deposit any portion of the 
reclamation forfeiture fund not needed for immediate use in the same 
manner as and subject to all the laws with respect to the deposit of 
state funds by the treasurer of the state. All interest earned by such 
portion of the fund as is deposited under this section shall be 
collected by the treasurer of the state and placed in the reclamation 
forfeiture fund under section 1513.18 of the Revised Code and credited 
as performance security under division (C)(2) of section 1513.08 of the 
Revised Code.
    Section 1513.181 is amended in the first paragraph by adding a new 
third sentence to provide as follows: ``All investment earnings of the 
coal mining administration and reclamation reserve fund shall be 
credited to the fund.'' The fourth sentence (formerly third) is amended 
by deleting the following words: ``or by surface mining under a surface 
mining permit issued under Chapter 1514. of the Revised Code.'' 
Additionally, the fourth sentence is amended by deleting the word 
``bond'' and replacing that word with the words ``performance 
security.'' The second paragraph is amended by deleting the phrase 
``coal mining administration and'' and by deleting the word ``reserve'' 
and adding in its place the word ``forfeiture.'' As amended, section 
1513.181 provides as follows:
    Sec. 1513.181. There is hereby created in the state treasury the 
coal mining administration and reclamation reserve fund. The fund shall 
be used for the administration and enforcement of this chapter. All 
investment earnings of the coal mining administration and reclamation 
reserve fund shall be credited to the fund. The chief of the division 
of mineral resources management may transfer not more than one million 
dollars annually from the fund to the reclamation forfeiture fund 
created in section 1513.18 of the

[[Page 7485]]

Revised Code to complete reclamation of lands affected by coal mining 
under a permit issued under this chapter, that the operator failed to 
reclaim and for which the operator's performance security is 
insufficient to complete the reclamation. Within ten days before or 
after the beginning of each calendar quarter, the chief may certify to 
the director of budget and management the amount of money needed to 
perform such reclamation during the quarter for transfer from the coal 
mining administration and reclamation reserve fund to the reclamation 
forfeiture fund.
    Fines collected under division (E) of section 1513.02 and section 
1513.99 of the Revised Code, and fines collected for a violation of 
section 2921.31 of the Revised Code that, prior to July 1, 1996, would 
have been a violation of division (G) of section 1513.17 of the Revised 
Code as it existed prior to that date, shall be paid into the 
reclamation forfeiture fund.
    Section 1513.182 is new and provides as follows:
    Sec. 1513.182. (A) There is hereby created the reclamation 
forfeiture fund advisory board consisting of five members. The Director 
of the Department of Natural Resources and the Director of the 
Department of Insurance shall be members. The governor shall appoint 
the remaining three members with the advice and consent of the senate. 
One member shall be a certified public accountant and two members shall 
be representatives of permittee's with permits covered by performance 
security provided in accordance with Section 1513.08(C)(2) of the 
Revised Code.
    Of the three members originally appointed by the governor pursuant 
to this section, one shall serve an initial term of two years, one an 
initial term of three years, and one an initial term of four years. 
Thereafter, terms of office of the three members shall be for four 
years, each term ending on the same date as the original date of 
appointment. Any member appointed to fill a vacancy occurring prior to 
the expiration of the term for which his predecessor was appointed 
shall hold office for the remainder of such term. Any member shall 
continue in office subsequent to the expiration date of his term until 
his successor takes office, or until a period of sixty days has 
elapsed, whichever occurs first. A vacancy in an unexpired term shall 
be filled in the same manner as the original appointment. The Governor 
may remove any member pursuant to sections 3.04 and 3.05 of the Revised 
Code.
    Board members representing the Department of Natural Resources and 
the Department of Insurance shall receive no compensation, but shall be 
reimbursed for actual and necessary expenses in the performance of 
their duties. The three remaining members of the board shall receive 
per diem compensation fixed pursuant to division (J) of section 124.15 
of the Revised Code and actual and necessary expenses incurred in the 
performance of their duties.
    For administrative purposes, the board is a part of the Department 
of Natural Resources.
    (B) The Board shall annually elect from among its members a 
chairperson, a vice-chairperson, and a secretary to keep a record of 
its proceedings;
    (C) The Board shall hold meetings as necessary at the call of the 
chairperson or a majority of the members.
    (D) The Board shall adopt rules and procedures by which it shall 
elect a chairperson, vice-chair person, and secretary, and establish 
procedures for conduct of meetings.
    (E) The Board shall:
    (1) Review, in accordance with the applicable rules and 
regulations, collections and payments to and expenditures from the 
reclamation forfeiture fund;
    (2) Authorize expenditures from the reclamation forfeiture fund 
necessary to carry out the responsibilities of the Board and the 
reclamation of land or water resources that have been adversely 
affected by past coal mining where the performance security was 
forfeited;
    (3) Periodically employ a qualified actuary to perform an actuarial 
study of the reclamation forfeiture fund;
    (4) Evaluate bond forfeiture collection, payments to the 
reclamation forfeiture fund, reclamation efforts at forfeiture sites, 
and compliance with reclamation plans;
    (5) Provide a forum for discussion of issues relative to the 
reclamation forfeiture fund;
    (6) Determine, based upon an actuarial study, the minimum and 
maximum amounts of the reclamation forfeiture fund and adjustments to 
the tax on the severance of coal that is levied under division (A)(8) 
of section 5749.02 of the Revised Code;
    (7) Report to the Governor and the Joint Committee on Agency Rule 
Review (``JCARR'') no less than biennially as to the financial status 
and adequacy of the reclamation forfeiture fund;
    (8) Make recommendations to the Governor and the Joint Committee on 
Agency Rule Review (``JCARR'') on alternative approaches and 
modifications to the reclamation forfeiture fund, the tax on severance 
of coal that is levied under division (A)(8) of section 5749.02 of the 
Revised Code, and the reclamation of land or water resources that have 
been adversely affected by past coal mining where the performance 
security was forfeited;
    (9) Adopt, amend, and rescind rules for implementing, adjusting, 
collecting, and administering the tax imposed under section 
5749.02(A)(8) of the Revised Code. The adoption, amendment, and 
rescission of rules under divisions (E)(9) of this section are subject 
to Chapter 119 of the Revised Code.
    Section 1513.29 is amended in the third paragraph by combining the 
first and second sentences by deleting the words ``at least four 
regular quarterly meetings each year'' at the end of the first 
sentence, and deleting the word ``Special'' at the beginning of the 
second sentence. Additionally, the words ``may be held'' are deleted 
and the words ``as necessary'' are added in place of the deleted words. 
As amended, the third paragraph provides as follows:
    The council shall hold meetings as necessary at the call of the 
chairperson or a majority of the members. The council shall annually 
elect from among its members a chairperson, a vice-chairperson, and a 
secretary to keep a record of its proceedings.
    The fourth paragraph is amended by deleting the words ``strip 
mining'' before the word ``reclamation''; adding the word 
``forfeiture'' after the word ``reclamation''; and by adding the phrase 
``created in section 1513.18 of the Revised Code.'' As amended, the 
fourth paragraph provides as follows:
    The council shall gather information, study, and make 
recommendations concerning the number of acres, location, ownership, 
condition, environmental damage resulting from the condition, cost of 
acquiring, reclaiming, and possible future uses and value of eroded 
lands within the state, including land affected by strip mining for 
which no cash is held in the reclamation forfeiture fund created in 
section 1513.18 of the Revised Code.
    The fifth paragraph is amended by deleting the phrase ``of the 
division of mineral resources management'' from the last sentence. As 
amended, the last sentence provides as follows: ``Expenses incurred by 
the council and compensation provided under this section shall be paid 
by the chief from the unreclaimed lands fund created in section 1513.30 
of the Revised Code.''
    Section 1513.30 is amended by adding a new last sentence to the end 
of the first paragraph to read as follows: ``All investment earnings of 
the

[[Page 7486]]

unreclaimed lands fund shall be credited to the fund.''
    Section 1513.30(B) is amended by deleting the second paragraph 
(starting with the words ``At least two weeks'') and the fourth 
paragraph (starting with the words ``The controlling board'').
    Section 1513.37(C)(1)(b) is amended by adding the words 
``performance security'' between the word ``bond'' and the words ``or 
other form.''
    Section 1513.37(C)(3) is amended by adding the phrase ``performance 
security, or other form of financial guarantee'' in four locations. As 
amended, section 1513.37(C)(3) provides as follows:
    (3) Surface coal mining operations on lands eligible for remining 
shall not affect the eligibility of those lands for reclamation and 
restoration under this section after the release of the bond, 
performance security, or other form of financial guarantee for any such 
operation as provided under division (F) of section 1513.16 of the 
Revised Code. If the bond, performance security, or other form of 
financial guarantee for a surface coal mining operation on lands 
eligible for remining is forfeited, moneys available under this section 
may be used if the amount of the bond, performance security, or other 
form of financial guarantee for a surface coal mining operation on 
lands eligible for remining is forfeited, moneys available under this 
section may be used if the amount of the bond, performance security, or 
other form of financial guarantee is not sufficient to provide for 
adequate reclamation or abatement, except that if conditions warrant, 
the chief immediately shall exercise the authority granted under 
division (L) of this section.
    Section 1513.371 is new and provides as follows:
    Sec. 1513.371 There is hereby created in the state treasury the 
mined land set aside fund consisting of grants made by the United 
States secretary of the interior from the Federal abandoned mine 
reclamation fund pursuant to section 402(g)(6)(A), 30 U.S.C. 
1232(g)(6)(A), of the ``Surface Mining Control and Reclamation Act of 
1977.'' 91 Stat. 445, 30 U.S.C. 1201. The chief of the division of 
mineral resources management shall administer the mined land set aside 
fund. Money in the fund shall be used solely to accomplish the purposes 
and priorities established in divisions (B)(1) to (4) of section 
1513.37 of the Revised Code. All investment earnings of the mined land 
set aside fund shall be credited to the fund.
    Section 1561.03 is amended by adding a new second paragraph to 
provide as follows:
    For the purpose of establishing standards governing surface coal 
mines and surface work areas of underground coal mines, the chief shall 
incorporate by reference 30 CFR parts 47, 48, 50, 62, 71, 72, and 77, 
as amended.
    Section 1567.35(E) is amended by deleting the word ``worker's'' and 
adding in its place the word ``worker.''
    Section 1567.35(I) is amended by deleting the word ``such'' and 
adding the word ``the'' in its place. In addition, a new second 
paragraph is added to provide as follows:
    Nothing in this section shall be construed to prohibit or impede 
the use of diesel equipment in an underground coal mine, approved for 
such use in accordance with Federal law.
    Section 5749.02(A)(1) is amended by changing ``Seven cents per ton 
of coal'' to ``Ten cents per ton of coal.''
    Section 5749.02(A)(8) is new and provides as follows:
    (8) An additional Fourteen cents per ton of coal produced from an 
area under a coal mining and reclamation permit issued under Chapter 
1513 of the Revised Code for which the performance security is provided 
under division (C)(2) of section 1513.08 of the Revised Code. Provided 
however, that:
    (a) When at the end of any fiscal biennium, the balance in the 
reclamation forfeiture fund under section 1513.18 of the Revised Code 
reaches the maximum amount of ten million dollars ($10,000,000), the 
tax imposed by this section shall be reduced to Twelve cents per ton, 
until the balance in the reclamation forfeiture fund at the end of a 
subsequent fiscal biennium decreases to five million dollars 
($5,000,000), at which point the tax imposed by this section shall be 
restored to Fourteen cents per ton;
    (b) When at the end of any fiscal biennium, the balance in the 
reclamation forfeiture fund under section 1513.18 of the Revised Code 
is below the minimum amount of five million dollars ($5,000,000), the 
tax imposed by this section shall be increased to Sixteen cents per 
ton, until the balance in the reclamation forfeiture fund at the end of 
a subsequent fiscal biennium increases to five million dollars 
($5,000,000), at which point the tax imposed by this section shall be 
restored to Fourteen cents per ton;
    (c) If an actuarial study performed pursuant to section 1513.182(E) 
of the Revised Code indicates that the minimum amount necessary to 
operate a[n] actuarially sound reclamation forfeiture fund differs from 
five million dollars ($5,000,000), then the minimum and maximum amounts 
of the fund as provided in divisions (a) and (b) of this section shall 
automatically be adjusted to conform to the actuarial study.
    (d) The reclamation forfeiture fund advisory board, established 
under section 1513.182 of the Revised Code, shall have authority to 
adopt, amend, and rescind rules for adjusting, collecting, and 
administering the tax imposed under this division (A)(8) of this 
section, including increasing or decreasing the amount of tax imposed 
based upon the fiscal year ending balance in the reclamation forfeiture 
fund under section 1513.18 of the Revised Code, an actuarial study 
performed pursuant to section 1513.182(E) of the Revised Code, and the 
fiscal requirements of the reclamation forfeiture fund to ensure 
sufficient revenues to provide adequate funds on an actuarial basis to 
provide performance security under division (C)(2) of section 1513.08 
of the Revised Code. The adoption, amendment, and rescission of rules 
under divisions (A)(8) of this section are subject to Chapter 119 of 
the Revised Code.
    Section 5749.02(B) is amended in the first sentence by deleting the 
phrase ``six and three tenths'' and adding in its place the word 
``five.'' In the first sentence, the following words are deleted, 
``fourteen and two tenths per cent shall be credited to the reclamation 
forfeiture fund created in section 1513.18 of the Revised Code, fifty 
seven and nine tenths'' and replaced by the words ``eighty-five.'' Also 
in the first sentence, the words ``the remainder'' are deleted and 
replaced by the words ``ten per cent.'' The existing second sentence 
(starting with the words ``When, at any time'') is deleted. The second 
paragraph is amended by adding the words ``created in section 1513.30 
of the Revised Code'' at the end of the sentence. Finally, a new 
paragraph is added at the end of section 5749.02(B). As amended, 
section 5749.02(B) provides as follows:
    (B) Of the moneys received by the treasurer of state from the tax 
levied in division (A)(1) of this section, five per cent shall be 
credited to the geological mapping fund created in section 1505.09 of 
the Revised Code eighty-five per cent shall be credited to the coal 
mining administration and reclamation reserve fund created in section 
1513.181 of the Revised Code, and ten per cent shall be credited to the 
unreclaimed lands fund created in section 1513.30 of the Revised Code.
    Fifteen per cent of the moneys received by the treasurer of state 
from the tax levied in division (A)(2) of this section shall be 
credited to the geological mapping fund and the remainder shall be 
credited to the

[[Page 7487]]

unreclaimed lands fund created in section 1513.30 of the Revised Code.
    Of the moneys received by the treasurer of state from the tax 
levied in divisions (A)(3) and (4) of this section, seven and five-
tenths per cent shall be credited to the geological mapping fund, 
forty-two and five-tenths per cent shall be credited to the unreclaimed 
lands fund, and the remainder shall be credited to the surface mining 
fund created in section 1514.06 of the Revised Code.
    Of the moneys received by the treasurer of state from the tax 
levied in divisions (A)(5) and (6) of this section, ninety per cent 
shall be credited to the oil and gas well fund created in section 
1509.02 of the Revised Code and ten per cent shall be credited to the 
geological mapping fund. All of the moneys received by the treasurer of 
state from the tax levied in division (A)(7) of this section shall be 
credited to the surface mining fund.
    Of the moneys received by the treasurer of state from the tax 
levied in division (A)(8) of this section, one-hundred percent shall be 
credited to the reclamation forfeiture fund created in section 1513.18 
of the Revised Code.
    Section 5749.02(C) is amended by deleting the existing language and 
incorporating the language of subsection (D) that is not deleted.
    Section 5749.02(D) is amended by deleting the first paragraph. In 
the second paragraph, the first sentence is amended by deleting the 
word ``this'' immediately before the word ``division,'' and by adding 
the phrase ``(A)(8) of this section'' immediately after the word 
``division.'' Also, the first sentence is amended by deleting the word 
``such,'' adding the phrase ``for which the performance security is 
provided under division (C)(2) of section 1513.08 of the Revised 
Code,'' deleting the word ``this,'' and adding the words ``(A)(8) of 
this section.'' The second sentence in the existing second paragraph is 
amended by adding the words ``levied under division (A)(8)'' and by 
adding the following to the end of the sentence: ``on coal produced 
from an area under a coal mining and reclamation permit issued under 
Chapter 1513. of the Revised Code if the permittee has made tax 
payments under division (A)(8) of this section during each of the 
preceding five full calendar years.'' Finally, the existing designation 
``(D)'' is deleted, so that its language is incorporated into 
subsection 5749.02(C). As amended, new subsection 5749.02(C) provides 
as follows:
    (C) When, at the close of any fiscal year, the chief finds that the 
balance of the reclamation forfeiture fund, plus estimated transfers to 
it from the coal mining and reclamation reserve fund under section 
1513.181 [1513.18.1] of the Revised Code, plus the estimated revenues 
from the tax levied by division (A)(8) of this section for the 
remainder of the calendar year that includes the close of the fiscal 
year, are sufficient to complete the reclamation of lands for which the 
performance security is provided under division (C)(2) of section 
1513.08 of the Revised Code, the purposes for which the tax under 
division (A)(8) of this section is levied shall be deemed accomplished 
at the end of that calendar year. The chief, within thirty days after 
the close of the fiscal year, shall certify those findings to the tax 
commissioner, and the tax levied under division (A)(8) of this section 
shall cease to be imposed after the last day of that calendar year on 
coal produced from an area under a coal mining and reclamation permit 
issued under Chapter 1513. of the Revised Code if the permittee has 
made tax payments under division (A)(8) of this section during each of 
the preceding five full calendar years.
    Section 5749.11 is new and provides as follows:
    Sec. 5749.11. (A) There is hereby allowed a nonrefundable credit 
against the taxes imposed under divisions (A)(1), (C), and (D) of 
section 5749.02 of the Revised Code for any severer to which a 
reclamation tax credit certificate is issued under section 1513.171 of 
the Revised Code. The credit shall be claimed in the amount shown on 
the certificate. The credit shall be claimed by deducting the amount of 
the credit from the amount of the first tax payment due under section 
5749.06 of the Revised Code after the certificate is issued. If a 
certificate is transferred under division (B) of this section, the 
credit shall be claimed by the transferee by deducting the amount of 
the credit from the amount of the transferee's first tax payment due 
after the certificate is transferred.
    If the amount of the credit shown on a certificate exceeds the 
amount of the tax otherwise due with that first payment, the excess 
shall be claimed against the amount of tax otherwise due on succeeding 
payment dates until the entire credit amount has been deducted. The 
total amount of credit claimed against payments shall not exceed the 
total amount of credit shown on the certificate.
    (B) A severer receiving a reclamation tax credit certificate issued 
under section 1513.171 of the Revised Code may transfer the certificate 
to any other severer that is subject to taxation under division (A)(1), 
(C), or (D) of section 5749.02 of the Revised Code and holds a license 
or permit issued under or referred to in section 5749.04 of the Revised 
Code. The transferee of a certificate may transfer the certificate to 
any other severer that is subject to such taxes and holds such a 
license or permit. A transfer of a certificate shall be made before the 
due date of the transferor's first tax payment occurring after the 
certificate is received by the transferor pursuant to issuance of the 
certificate by the chief of the division of mineral resources 
management in the department of natural resources or pursuant to a 
prior transfer.
    Transfers may be made for consideration or pursuant to terms agreed 
to by the transferor and transferee. If the severer transfers a 
certificate, the severer shall provide to the tax commissioner written 
notification of the transfer in the form or manner prescribed by the 
tax commissioner. The notification shall include, at a minimum, the 
identity of the severer and the number of the certificate issued by the 
chief of the division of mineral resources management under section 
1513.171 of the Revised Code. The tax commissioner shall maintain a 
record of all transfers of which the commissioner is notified.
    (C) A severer claiming a credit under this section shall retain a 
reclamation tax credit certificate for not less than four years 
following the date of the last tax payment against which the credit 
allowed under that certificate was applied. Severers shall make tax 
credit certificates available for inspection by the tax commissioner 
upon the tax commissioner's request.
    Section 2 of the amendment submittal provides as follows:
    Section 2. That existing sections 303.211, 519.211, 1513.01, 
1513.02, 1513.07, 1513.071, 1513.08, 1513.13, 1513.16, 1513.17, 
1513.18, 1513.181, 1513.29, 1513.30, 1513.37, 1567.35, and 5749.02 of 
the Revised Code are hereby repealed.
    Section 3 of the amendment submittal provides as follows:
    Section 3. It is the intent of the General Assembly to appropriate 
five million dollars for the reclamation of land affected by the 
surface mining of coal.
    Section 4 of the amendment submittal provides as follows:
    Section 4. It is the intent of the General Assembly that a portion 
of the funds appropriated pursuant to this section be used to complete 
a management study of the financial resources of the coal regulatory 
program of the Division of Mineral Resources Management within the 
Department of

[[Page 7488]]

Natural Resources. The Chief of the Division of Mineral Resources 
Management shall, in consultation with a trade group representing the 
coal mining industry and a state-wide non-governmental environmental 
organization, shall develop the parameters for the management study. 
The cost of the study shall not exceed $50,000.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the program.

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations. We may not consider or respond to your comments 
when developing the final rule if they are received after the close of 
the comment period (see DATES). We will make every attempt to log all 
comments into the administrative record, but comments delivered to an 
address other than the Appalachian Region office identified above may 
not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SATS No. OH-250-FOR,'' your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Appalachian Region office 
at (412) 937-2153.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., local time, on 
February 28, 2006. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold the hearing. To assist the 
transcriber and ensure an accurate record, we request, if possible, 
that each person who speaks at a public hearing provide us with a 
written copy of his or her comments. The public hearing will continue 
on the specified date until everyone scheduled to speak has been given 
an opportunity to be heard. If you are in the audience and have not 
been scheduled to speak and wish to do so, you will be allowed to speak 
after those who have been scheduled. We will end the hearing after 
everyone scheduled to speak and others present in the audience who wish 
to speak, have been heard. If you are disabled and need a special 
accommodation to attend a public hearing, contact the person listed 
under FOR FURTHER INFORMATION CONTACT.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowable by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on proposed State regulatory 
programs and program amendments submitted by the States must be based 
solely on a determination of whether the submittal is consistent with 
SMCRA and its implementing Federal regulations and whether the other 
requirements of 30 CFR parts 730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal program involving 
Indian lands.

[[Page 7489]]

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

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 has determined 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.). 
The State submittal that 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. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. 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 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 governmental 
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 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 a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 3, 2006.
Brent Wahlquist,
Regional Director, Appalachian Region.
[FR Doc. E6-1990 Filed 2-10-06; 8:45 am]
BILLING CODE 4310-05-P