[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]



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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.

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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

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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 
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

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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-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.

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------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
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                              * * * * * * *
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.
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[FR Doc. 2023-20348 Filed 9-19-23; 8:45 am]
BILLING CODE 4310-05-P