57640 Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 

Telephone: (202) 514–3452; fax: (202) 

514–4317.

SUPPLEMENTARY INFORMATION: This rule 

makes two technical changes to the 

Department of Justice’s regulation 

concerning waiver of claims for 

erroneous payments of pay and 

allowances to its employees. The 

regulation to be modified currently 

delegates waiver authority under 5 

U.S.C. 5584, ‘‘as amended by Public 

Law 92–453.’’ Section 5584 has been 

amended several times since. The 

reference to Public Law 92–453 is 

outdated and is deleted. In addition, the 

current regulation directs application of 

‘‘standards prescribed by the 

Comptroller General’’ for the waiver of 

claims. These standards are now 

obsolete and are therefore deleted. 

Administrative Procedure Act 

This rule relates to a matter of agency 

management or personnel and, 

therefore, is exempt from the usual 

requirements of prior notice and 

comment and a 30-day delay in effective 

date. See 5 U.S.C. 553(a)(2). 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act, 5 

U.S.C. 605(b), has reviewed this rule 

and, by approving it, certifies that it will 

not have a significant economic impact 

on a substantial number of small entities 

because it pertains to personnel and 

administrative matters affecting the 

Department. Further, a Regulatory 

Flexibility Analysis was not required to 

be prepared for this final rule because 

the Department was not required to 

publish a general notice of proposed 

rulemaking for this matter.

Executive Order 12866

This rule has been drafted and 

reviewed in accordance with Executive 

Order 12866, Regulatory Planning and 

Review, section 1(b), Principles of 

Regulation. This rule is limited to 

agency organization, management, and 

personnel as described by Executive 

Order 12866 section (3)(d)(3) and, 

therefore, is not a ‘‘regulation’’ or ‘‘rule’’

as defined by that Executive Order. 

Accordingly, this rule has not been 

reviewed by the Office of Management 

and Budget. 

Executive Order 13132

This rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

Federalism, the Department has 

determined that this rule does not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

summary impact statement. 

Executive Order 12988

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, Civil 

Justice Reform. 

Unfunded Mandates Reform Act of 1995

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995, 2 U.S.C. 1501 et seq.

Small Business Regulatory Enforcement 

Fairness Act of 1996

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804. This 

rule will not result in an annual effect 

on the economy of $100 million or 

more; a major increase in costs or prices; 

or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based enterprises to 

compete with foreign-based enterprises 

in domestic and export markets. 

This action pertains to agency 

management, personnel, and 

organization and does not substantially 

affect the rights or obligations of nonagency parties. Accordingly, it is not a 

‘‘rule’’ for purposes of the reporting 

requirement of 5 U.S.C. 801. 

Congressional Review Act 

The Department has determined that 

this action pertains to agency 

management or personnel and, 

accordingly, is not a ‘‘rule’’ as that term 

is used by the Congressional Review Act 

(Subtitle E of the Small Business 

Regulatory Enforcement Fairness Act of 

1996). Therefore, the reporting 

requirement of 5 U.S.C. 801 does not 

apply.

List of Subjects in 28 CFR Part 0

Authority delegations (government 

agencies), Government employees, 

Organization and functions (government 

agencies).

■ Accordingly, by virtue of the authority 

vested in me as Attorney General, 

including 5 U.S.C. 301 and 5584, and 28 

U.S.C. 509 and 510, Subpart X of Part 0, 

Title 28 of the Code of Federal 

Regulations is amended as follows:

PART 0—ORGANIZATION OF THE 

DEPARTMENT OF JUSTICE

■ 1. The authority for part 0 continues to 

read as follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 

510, 515–519.

§ 0.155 [Amended]

■ 2. In § 0.155, delete the phrase ‘‘, as 

amended by Public Law 92–453,’’ and 

delete the phrase ‘‘in accordance with 

the standards prescribed by the 

Comptroller General in 4 CFR parts 91 

through 93’’.

Dated: September 21, 2004. 

John Ashcroft, 

Attorney General.

[FR Doc. 04–21604 Filed 9–24–04; 8:45 am] 

BILLING CODE 4410–CS–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 935

[OH–248–FOR] 

Ohio Regulatory Program

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior.

ACTION: Final rule; approval of 

amendment. 

SUMMARY: We are approving an 

amendment to the Ohio surface coal 

mining regulatory program (the Ohio 

program) under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act). The amendment 

we are approving revises the Ohio 

program to reflect changes promulgated 

by the U.S. Environmental Protection 

Agency (EPA) related to coal remining 

operations. The amendment is intended 

to revise the Ohio program to be 

consistent with the corresponding 

Federal regulations.

DATES: Effective September 27, 2004.

FOR FURTHER INFORMATION CONTACT: Mr. 

George Rieger, Chief, Pittsburgh Field 

Division, Office of Surface Mining 

Reclamation and Enforcement, 

Appalachian Regional Coordinating 

Center, 3 Parkway Center, Pittsburgh, 

Pennsylvania 15220, Telephone (412) 

937–2153. E-mail: grieger@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Ohio Program 

II. Submission of the Amendment 

III. OSM’s Findings

Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 57641

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

VI. Procedural Determinations

I. Background on the Ohio Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its 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. Submission of the Amendment 

By letter dated November 7, 2003, 

Ohio sent us an amendment to its 

program (Administrative Record 

Number OH–2184–00) under SMCRA 

(30 U.S.C. 1201 et seq.). Ohio proposed 

to revise the Ohio Administrative Code 

(OAC) rules, Sections 1501:13–1–02 and 

1501:13–4–15 relating to coal remining 

operations and water quality standards 

so that the Ohio program is consistent 

with the revised U.S. Environmental 

Protection Agency’s (EPA) water quality 

standards relating to coal remining 

operations (January 23, 2002; 67 FR 

3370).

We announced receipt of the 

proposed amendment in the January 20, 

2004, Federal Register (69 FR 2689) 

(Administrative Record Number OH–

2184–02). In the same document, we 

opened the public comment period and 

provided an opportunity for a public 

hearing or meeting on the amendment’s 

adequacy. We did not hold a hearing or 

a meeting because no one requested one. 

The public comment period closed on 

February 19, 2004. We received 

comments from one Federal agency. 

In the letter that accompanied the 

State’s November 7, 2003, submittal of 

this amendment, the Chief of the 

Division of Mineral Resources 

Management (DMRM) stated that the 

intent of the proposed amendment is to 

‘‘bring Ohio’s program up to date with 

the recent changes promulgated by the 

USEPA [United States Environmental 

Protection Agency] on January 23rd, 

2002 [67 FR 3370] to 40 CFR part 434, 

subpart G Coal Remining. * * *’’ The 

letter also stated that the DMRM 

‘‘proposes updating existing policy and 

procedure directives to capture the 

statistical and monitoring procedures 

for coal mining.’’ The statistical and 

monitoring procedures referred to in the 

quoted language above are located in 

appendix B to 40 CFR part 434. 

Ohio’s submittal also included two 

draft documents. One of the draft 

documents is titled ‘‘Memorandum of 

Agreement, Remining NPDES Permits’’

and concerns an agreement between the 

Ohio Environmental Protection Agency 

(OEPA) and Ohio Department of Natural 

Resources, DMRM related to the 

issuance of remining National Pollutant 

Discharge Elimination System (NPDES) 

permits. The second draft document is 

titled ‘‘Policy/Procedure Directive, 

Regulatory’’ and outlines the inspection 

responsibilities for pollution abatement 

areas. Because both of these documents 

were in draft form and not applicable as 

a State program amendment, we did not 

request public comment on the 

documents in the January 20, 2004, 

Federal Register notice. 

III. OSM’s Findings 

Following are findings we made 

concerning the amendments under 

SMCRA and the Federal regulations at 

30 CFR 732.15 and 732.17. We are 

approving the amendment. Any 

revisions that we do not specifically 

discuss below concern nonsubstantive 

wording or editorial changes, or recodification changes resulting from 

these amendments, and we are 

approving them here without 

discussion. 

As we noted above, Ohio submitted 

the proposed amendment to update 

Ohio’s program with the recent changes 

to 40 CFR part 434, subpart G—Coal 

Remining that were promulgated by the 

EPA on January 23rd, 2002. The EPA 

regulations apply to pre-existing 

discharges that are located within, or 

that are hydrologically connected to, 

pollution abatement areas of a coal 

remining operation. The EPA 

regulations implement Section 301(p) of 

the Clean Water Act, which provides 

incentives for remining abandoned mine 

lands that pre-date the passage of 

SMCRA in 1977. 

Despite the fact that Ohio submitted 

the amendment to update its program 

with the recent changes to EPA’s 

regulations at 40 CFR part 434, subpart 

G—Coal Remining, our standards for 

review and approval of State program 

amendments, as provided in the Federal 

regulations at 30 CFR 732.17(h)(10) and 

732.15(a), are SMCRA and its 

implementing regulations at 30 CFR part 

700 to End. That is, our standards of 

approval for the proposed amendments 

are not the Clean Water Act nor EPA’s 

regulations at 40 CFR part 434, but are 

SMCRA and its implementing 

regulations. 

We note, however, that the Federal 

regulations at 30 CFR 816/817.42, 

concerning hydrologic balance, water 

quality standards and effluent 

limitations, provide as follows:

Discharges of water from areas disturbed 

by surface mining activities shall be made in 

compliance with all applicable State and 

Federal water quality laws and regulations 

and with the effluent limitations for coal 

mining promulgated by the U.S. 

Environmental Protection Agency set forth in 

40 CFR 434.

Therefore, while our standards for 

review and approval of the amendments 

are SMCRA and its implementing 

regulations at 30 CFR part 700 to End, 

we will also discuss the proposed 

amendments in the light of the EPA 

regulations at 40 CFR part 434, subpart 

G—Coal Remining. 

1. 1501:13–1–02 Definitions 

a. Definition of ‘‘Abatement plan.’’

This definition has been revised by 

adding a reference to ‘‘best management 

practices’’ and, as an example of best 

management practices, the phrase 

‘‘daylighting old underground works.’’

As amended, the definition provides as 

follows:

(A) ‘‘Abatement plan’’ means any 

individual technique or combination of 

techniques, the implementation of which 

may result in reduction of the base line 

[baseline] pollution load. Abatement 

techniques may include but are not limited 

to Best Management Practices such as: 

addition of alkaline material, daylighting old 

underground works, special plans for 

managing toxic- and acid-forming material, 

regrading, and revegetation.

This new State provision appears to 

be consistent with EPA’s requirements 

at 40 CFR 434.72(a) concerning effluent 

limitations attainable by the application 

of best practicable control technology 

currently available. The EPA provision 

at 40 CFR 434.72(a) provides that the 

operator must submit a site-specific 

‘‘Pollution Abatement Plan’’ to the 

permitting authority for the pollution 

abatement area. The EPA requirement 

further provides, among other things, 

that the Plan must identify the selected 

‘‘best management practices (BMPs)’’ to 

be used. In its discussion of BMPs for 

permits issued after the 1987 

amendment to the Clean Water Act

57642 Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 

(January 23, 2002; 67 FR 3370, 3376), 

EPA stated that ‘‘[t]hese BMPs include 

special handling of acid-producing 

materials, daylighting of abandoned 

underground mines, control of surface 

water and ground water, control of 

sediment, addition of alkaline material, 

and passive treatment.’’ Therefore, the 

State’s proposed revision to the 

definition of ‘‘Abatement plan’’ appears 

to be consistent with EPA’s 

requirements concerning Pollutional 

Abatement Plans at 40 CFR 434.72(a).

Neither SMCRA nor its implementing 

regulations have a definition of ‘‘best 

management practices.’’ However, we 

find that the addition of the term ‘‘best 

management practices’’ and the addition 

of the phrase ‘‘daylighting old 

underground works’’ as a specific 

example of a best management practice 

are not inconsistent with SMCRA or its 

implementing regulations and do not 

render the existing definition less 

effective than the Federal regulations at 

30 CFR 816/817.42, which require 

compliance with all applicable State 

and Federal water quality laws and 

regulations and with the effluent 

limitations for coal mining promulgated 

by EPA at 40 CFR part 434. Therefore, 

we are approving the amendments to 

the definition of ‘‘Abatement plan.’’

b. Definition of ‘‘Acid water.’’ This 

definition has been revised by changing 

the pH standard and by adding the 

phrase ‘‘or a total iron concentration 

equal to or greater than 10mg/l.’’ As 

amended, the definition provides as 

follows:

(D) ‘Acid water’ means any waters, the pH 

of which, as determined by standard 

methods, is less than 6.5, or a total iron 

concentration equal to or greater than 10mg/

l.

The amended definition of ‘‘Acid 

water’’ appears to be consistent with 

EPA’s definition of AMD (acid mine 

drainage) in appendix A of the preamble 

to EPA’s January 23, 2002, final rule 

notice (67 FR 3370, 3405). EPA defines 

AMD as acid mine drainage which, 

before any treatment, either has a pH of 

less than 6.0 or a total iron 

concentration equal to or greater than 10 

mg/l. The pH standard in the State’s 

definition of acid water (less than 6.5) 

is a higher standard than EPA’s standard 

for AMD (less than 6.0) and, therefore, 

appears to be not inconsistent with the 

EPA standard. 

The Federal regulations at 30 CFR 

701.5 define the term ‘‘acid drainage’’ as 

follows:

Acid drainage means water with a pH of 

less than 6.0 and in which total acidity 

exceeds total alkalinity, discharged from an 

active, inactive or abandoned surface coal 

mine and reclamation operation or from an 

area affected by surface coal mining and 

reclamation operations.

There is no definition of ‘‘acid water’’

in SMCRA or its implementing 

regulations. However, there is a 

definition in OSM’s regulations for 

‘‘acid drainage’’ at 30 CFR 701.5. The 

State has set a higher pH standard (6.5) 

than the 6.0 pH standard in OSM’s 

definition. We note Ohio also has a 

definition for ‘‘acid drainage’’ which is 

identical to and no less effective than 

the Federal definition. There is nothing 

in the proposed definition of ‘‘acid 

water’’ that supersedes or replaces the 

definition of ‘‘acid drainage’’ or the 

State’s effluent limitation standards for 

iron or its compliance with the EPA 

effluent limitation at 40 CFR part 434. 

Therefore, we find that the State’s 

definition is not inconsistent with the 

Federal definition and can be approved. 

c. Definition of ‘‘Base line pollution 

load.’’ This definition has been revised 

by deleting the term ‘‘pH’’ and replacing 

that term with the words ‘‘net acidity.’’

In addition, the word ‘‘total’’ is added 

immediately before the words ‘‘iron,’’

and ‘‘manganese.’’ The words ‘‘and total 

suspended solids’’ are added 

immediately following the word 

‘‘manganese.’’ As amended, the 

definition provides as follows:

(N) ‘‘Base line pollution load’’ means the 

characterization of the material being 

discharged from or on the pollution 

abatement area, described in terms of mass 

loading for net acidity, total iron and total 

manganese, and total suspended solids, 

including seasonal variations and variations 

in response to precipitation events.

The EPA regulations do not 

specifically define the term ‘‘baseline 

pollution load.’’ However, the EPA 

regulations at 40 CFR part 434, 

appendix B outline the procedures for 

determining the baseline loadings of 

pre-existing pollutional discharges, and 

provide us with some understanding of 

the term baseline pollution load. 

Essentially, baseline pollution load is an 

estimate of the existing quantities of 

pollutants in a discharge as determined 

by at least monthly sampling over a 

period of 12 months. Such a sampling 

regimen would take into consideration 

the seasonal changes in water quantities 

and pollutant concentrations. As 

amended, the State’s definition of ‘‘Base 

line pollution load’’ appears to be 

consistent with and incorporates the 

same pollutant terminology that appear 

in the table of effluent limitations at 40 

CFR 434.72(b)(1). 

There is no definition of ‘‘Base line 

pollution load’’ in SMCRA or its 

implementing regulations. We find, 

however, that the State’s definition is 

not inconsistent with the Federal 

regulations at 30 CFR 816/817.42, which 

require compliance with all applicable 

State and Federal water quality laws 

and regulations and with the effluent 

limitations for coal mining promulgated 

by EPA at 40 CFR part 434 and can be 

approved. 

d. Definition of ‘‘Best available 

technology economically achievable.’’

This definition has been totally revised 

to provide as follows:

(O) ‘‘Best available technology 

economically achievable’’ for remining 

operations means implementation of a 

pollution abatement plan that incorporates 

Best Management Practices (BMPs) designed 

to improve pH (as acidity) and reduce 

pollutant loadings of iron, manganese and 

sediment to the maximum extent possible 

from or on the pollution abatement area. 

(1) BMP’s are practices implemented 

during the mining and reclamation of 

remining sites that are designed to reduce, if 

not completely eliminate, the pre-existing 

water pollution problems. BMP’s are tailored 

to specific mining operations based largely 

on pre-existing site conditions, hydrology, 

and geology. BMP’s are designed to function 

in a physical and/or geochemical manner to 

reduce pollution loadings. These BMP 

measures include engineering, geochemical, 

daylighting, regrading, revegetation, 

diversion ditches or other applicable 

practices.

In the preamble to the Federal 

Register notice in which EPA 

promulgated its coal remining 

regulations at 40 CFR part 434, subpart 

G, EPA discussed the term ‘‘best 

available technology economically 

achievable’’ (BAT) (67 FR 3370, 3379; 

January 23, 2002). Specifically, EPA 

stated that it ‘‘is establishing that the 

best available technology economically 

achievable for remining operations is 

implementation of a pollution 

abatement plan that incorporates BMPs 

[best management practices] designed to 

improve pH (as acidity) and reduce 

pollutant loadings of iron, manganese 

and sediment, and a requirement that 

such pollutant levels do not increase 

over baseline conditions.’’ In the same 

notice, in a discussion of remining 

permits issued by various States under 

Section 301(p) of the Clean Water Act, 

EPA stated that the remining operations 

must meet the alternate baseline 

numeric limits specified in the permits 

‘‘and must implement site-specific 

BMPs’’ (67 FR at 3376). These BMPs, 

EPA stated, ‘‘include special handling of 

acid-producing materials, daylighting of 

abandoned underground mines, control 

of surface water and ground water, 

control of sediment, addition of alkaline 

material, and passive treatment’’ (67 FR 

at 3376). Ohio’s definition of ‘‘Best 

available technology economically

Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 57643

achievable,’’ with its included 

definition of ‘‘best management 

practices’’ appears to be consistent with 

EPA’s discussion of the meaning of 

these terms in its January 23, 2002, 

Federal Register notice. 

There is no definition of ‘‘Best 

available technology economically 

achievable’’ in SMCRA or its 

implementing regulations. We find, 

however, that the State’s definition is 

not inconsistent with the Federal 

regulations at 30 CFR 816/817.42, which 

require compliance with all applicable 

State and Federal water quality laws 

and regulations and with the effluent 

limitations for coal mining promulgated 

by EPA at 40 CFR part 434 and can be 

approved. 

e. Definition of ‘‘Chief.’’ This 

definition, at 13–1–02(R), has been 

revised to mean the Chief of the division 

of ‘‘Mineral Resources Management.’’

The name change resulted when Ohio’s 

Department of Natural Resources 

combined the responsibilities of the 

Division of Oil and Gas with those of 

the Division of Mines and Reclamation. 

We find that this revision does not 

render the Ohio program less effective 

than the Federal regulations and can be 

approved. 

f. Definition of ‘‘Pollution abatement 

area.’’ This definition has been amended 

by adding a new sentence at the end of 

the existing definition. The new 

sentence provides that the ‘‘pollution 

abatement area must include, to the 

extent practicable, areas adjacent to and 

nearby the remining operation that also 

must be affected to reduce the pollution 

load of the pre-existing discharges and 

may include the immediate location of 

the pre-existing discharges.’’ As 

amended, the definition provides as 

follows:

(MMMM) ‘‘Pollution abatement area’’

means that part or parts of the permit area 

which are causing or contributing to the base 

line [baseline] pollution load, and which 

must be affected to bring about potential 

improvement of the base line [baseline] 

pollution load, and which may include the 

immediate location of the discharge(s). The 

pollution abatement area must include, to the 

extent practicable, areas adjacent to and 

nearby the remining operation that also must 

be affected to reduce the pollution load of the 

pre-existing discharges and may include the 

immediate location of the pre-existing 

discharges.

The new sentence that has been 

added to the definition of ‘‘Pollution 

abatement area’’ appears to be 

substantively identical to the 

counterpart sentence in EPA’s definition 

of ‘‘pollution abatement area’’ in the 

Federal regulations at 40 CFR 434.70(b). 

There is no definition of ‘‘Pollution 

abatement area’’ in SMCRA or its 

implementing regulations. We find, 

however, that the State’s definition is 

not inconsistent with the Federal 

regulations at 30 CFR 816/817.42, which 

require compliance with all applicable 

State and Federal water quality laws 

and regulations and with the effluent 

limitations for coal mining promulgated 

by EPA at 40 CFR part 434 and can be 

approved. 

g. Definition of ‘‘Pre-existing 

discharge.’’ This definition has been 

amended by adding a new sentence at 

the end of the existing definition. As 

amended, the definition provides as 

follows:

(OOOO) ‘‘Pre-existing discharge’’ means a 

discharge from surface or subsurface waters 

which is located on previously mined area as 

defined in this rule. This term shall include 

a pre-existing discharge that is relocated as 

a result of the implementation of best 

management practices contained in the 

abatement plan.

The new sentence that was added to 

the definition of ‘‘Pre-existing 

discharge’’ appears to be substantively 

identical to the counterpart sentence in 

EPA’s definition of ‘‘pre-existing 

discharge’’ in the Federal regulations at 

40 CFR 434.70(c). There is no definition 

of ‘‘Pre-existing discharge’’ in SMCRA 

or its implementing regulations. We 

find, however, that the State’s definition 

is not inconsistent with the Federal 

regulations at 30 CFR 816/817.42, which 

require compliance with all applicable 

State and Federal water quality laws 

and regulations and with the effluent 

limitations for coal mining promulgated 

by EPA at 40 CFR part 434 and can be 

approved. 

2. OAC 1501:13–4–15 Authorization 

To Conduct Coal Mining on Pollution 

Abatement Areas 

This provision is amended by adding 

new paragraphs 1501:13–4–15(C)(2)(a), 

(b) and (c) as follows:

(a) If the Chief determines that it is 

infeasible to collect samples for establishing 

the baseline pollution load and that remining 

will result in significant improvement that 

would not otherwise occur, then the numeric 

effluent limitations do not apply to the 

pollution abatement area. Pre-existing 

discharges for which it is infeasible to collect 

samples for determination of baseline 

pollutant levels include, but are not limited 

to, discharges that exist as a diffuse 

groundwater flow that cannot be assessed via 

sample collection; a base flow to a receiving 

stream that cannot be monitored separate 

from the receiving stream; a discharge on a 

steep or hazardous slope that is inaccessible 

for sample collection; a pre-existing 

discharge that is too large to adequately 

assess via sample collection; or a number of 

pre-existing discharges so extensive that 

monitoring of individual discharges is 

infeasible.

(b) If the Chief approves a non-numeric 

NPDES remining permit the operator shall 

implement a pollution abatement plan 

incorporating BMP’s designed to reduce the 

pollutant levels of acidity, iron, manganese, 

and solids in pre-existing discharges. The 

monitoring plan will be determined by the 

Chief. An operator who obtains a nonnumeric NPDES remining permit will not be 

subject to paragraphs F(2), (3), (4), (5), (6) and 

(H)(3)(c) of this section. 

(c) TSS [total suspended solids] and SS 

[suspended solids] are exempt during mining 

and reclamation, if the Chief determines it is 

infeasible or impractical based on the site 

specific conditions of the soil, climate, 

topography, steep slopes, or other baseline 

conditions provided that the operator 

demonstrates that significant reductions of 

TSS and SS will be achieved through the 

incorporation of sediment control BMP’s into 

the pollution abatement plan as required 

under paragraph (C)(4).

On January 23, 2002, the EPA 

amended 40 CFR part 434 by adding 

new subpart G-Coal Remining (67 FR 

3370). 40 CFR 434.72(b)(1) sets forth the 

effluent limits for pre-existing 

discharges. 40 CFR 434.72(b)(2) 

authorizes an exception to compliance 

with the effluent limitations at 40 CFR 

434.72(b)(1) in cases where the 

permitting authority determines that it 

is infeasible to collect samples for 

establishing the baseline pollutant 

levels and that remining will result in 

significant improvement that would not 

otherwise occur. The proposed State 

language at OAC 1501: 13–4–15

(C)(2)(a) appears to be substantively 

identical to the EPA provisions at 40 

CFR 434.72(b)(2). 

OAC 1501: 13–4–15(C)(2)(a) 

authorizes the use of non-numeric 

effluent limitations in cases where the 

Chief of the DMRM determines that it is 

infeasible to collect samples for 

establishing the baseline pollution load 

and where significant improvement that 

would not otherwise occur. In response 

to our request to EPA for its concurrence 

and comments on the proposed 

amendment, the EPA concurred with 

the proposed amendment and stated 

that it had no comments 

(Administrative Record Numbers OH–

2184–03 and OH–2184–04). EPA is 

primarily responsible for establishing 

effluent limitations. Therefore, for the 

reasons discussed above, we find that 

proposed OAC 1501:13–4–15 (C)(2)(a) 

can be approved because it is in 

accordance with Section 702(a) of 

SMCRA which provides that nothing in 

SMCRA can be construed as 

superseding, amending or modifying the 

Federal Water Pollution Control Act (i.e.

the Clean Water Act) or its regulations.

57644 Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 

OAC 1501: 13–4–15(C)(2)(b) exempts 

an operator who receives a non-numeric 

NPDES remining permit under OAC 

1501: 13–4–15(C)(2)(a) from the 

discharge treatment requirements at 

OAC 1501: 13–4–15 F(2), (3), (4), (5), (6), 

and from the bond release requirements 

at OAC 1501: 13–4–15(H)(3)(c). The new 

State provision appears to be consistent 

with EPA’s requirements concerning 

effluent limitations for coal remining 

operations at 40 CFR 434.72(b)(2). The 

EPA provision provides that if the 

permitting authority determines that it 

is infeasible to collect samples for 

establishing the baseline pollutant 

levels pursuant to 40 CFR 434.72(b)(1), 

and that remining will result in 

significant improvement that would not 

otherwise occur, then the numeric 

effluent limitations at 40 CFR 

434.72(b)(1) do not apply. That is, under 

the EPA rule, no effluent limitations 

would be established for pre-existing 

pollutional discharges that qualify 

under the ‘‘unfeasible to establish 

baseline pollutant levels’’ provision at 

40 CFR 434.72(b)(2). Therefore, when 

the State authorizes a non-numerical 

NPDES permit for pre-existing 

pollutional discharges, no baseline 

effluent limitation standards would be 

established for the qualifying 

discharges. Therefore, the requirements 

concerning treatment of discharges at 

OAC 1501: 13–4–15 F(2), (3), (4), (5), 

and (6) would not apply to the 

qualifying discharges because no 

numerical baseline treatment standards 

were established and these Subsections 

pertain to numeric effluent limitations. 

Similarly, the bond release requirements 

at OAC 1501: 13–4–15(H)(3)(c) would 

not apply to the qualifying discharges 

because no numerical baseline 

treatment standards were established. 

The EPA regulations concerning 

alternate and non-numerical effluent 

limitations for pre-existing pollutional 

discharges, at 40 CFR part 434, subpart 

G-Coal Remining, apply only to preexisting discharges that are not comingled with waste streams from active 

mining areas. Any pre-existing 

discharge that is co-mingled with active 

mining wastewater is subject to the most 

stringent limitations applicable to any 

component of the waste stream. Once 

active co-mingling of waters has ceased, 

however, the pre-existing discharge is 

not required to continue to meet the 

more stringent effluent limits. EPA 

stated that it believes that it would 

create a significant disincentive for 

remining activities to continue to 

require compliance with the more 

stringent effluent limits after comingling has ceased (67 FR 3378). The 

same is true in Ohio at OAC 1501: 13–

4–15(F)(1). 

In its January 23, 2002, Federal 

Register notice, EPA explained that in 

specific and limited cases, permit 

requirements may be based on 

implementation of an approved BMP 

plan ‘‘in lieu of numeric limitations 

based on baseline pollution levels’’ (67 

FR 3378). That is, in specific and 

limited cases, there would be no 

numerical effluent limitations 

established based upon baseline 

sampling data. Rather, the Pollution 

Abatement Plan that is required under 

40 CFR 434.72(a), must be designed to 

reduce the pollution load from preexisting discharges and must identify 

selected BMPs to be used. The BMPs 

must be implemented as specified in the 

plan. As we noted above, EPA 

concurred with the proposed Ohio 

amendments and stated that it had no 

comments. Neither SMCRA nor its 

implementing regulations have a 

counterpart to 1501:13–4–15(F)(2), (3), 

(4), (5), (6) and (H)(3)(c). Therefore, an 

exemption from these requirements 

found at proposed OAC 1501:13–4–15 

(C)(2)(b), does not render the Ohio 

program inconsistent with the Federal 

regulations at 30 CFR 816/817.42 and 

can be approved. Considering the above, 

we find that proposed OAC 1501: 13–4–

15(C)(2)(b) does not render the Ohio 

program less effective than the Federal 

regulations at 30 CFR 816/817.42 

concerning compliance with water 

quality standards and effluent 

limitations and can be approved.

OAC 1501: 13–4–15(C)(2)(c) exempts 

pre-existing pollutional discharges from 

TSS and SS standards upon the 

specified determinations by the Chief of 

the DMRM. This new State provision 

appears to be consistent with EPA’s 

requirements concerning effluent 

limitations for coal remining operations 

at 40 CFR 434.72(b)(1). Footnote 1 to the 

table of effluent limitations at 40 CFR 

434.72(b)(1) provides as follows:

1A pre-existing discharge is exempt from 

meeting standards in Subpart E of this part 

[40 CFR part 434, subpart E] for TSS and SS 

when the permitting authority determines 

that Subpart E standards are infeasible or 

impractical based on the site-specific 

conditions of soil, climate, topography, steep 

slopes, or other baseline conditions provided 

that the operator demonstrates that 

significant reductions of TSS and SS will be 

achieved through the incorporation of 

sediment control BMPs into the Pollution 

Abatement Plan as required by paragraph (a) 

of this section [40 CFR 434.72(a)].

The proposed State provision at OAC 

1501: 13–4–15(C)(2)(c) appears to be 

substantively identical to and provides 

the same exemption concerning TSS 

and SS as is authorized by EPA at 40 

CFR 434.72(b)(1). As 40 CFR 434.71(a) 

clarifies, 40 CFR part 434, subpart G 

applies to pre-existing discharges that 

are located within or are hydrologically 

connected to pollution abatement areas 

of a coal remining operation. Therefore, 

the exemption for TSS and SS applies 

only to pre-existing discharges that are 

located within or are hydrologically 

connected to pollution abatement areas 

of a coal remining operations. As we 

noted above, EPA concurred with the 

proposed amendments and stated that it 

had no comments. We find that 

proposed OAC 1501: 13–4–15(C)(2)(c) 

does not render the Ohio program less 

effective than the Federal regulations at 

30 CFR 816/817.42, which requires 

compliance with all applicable State 

and Federal water quality laws and 

regulations, or with 30 CFR 

780.21(j)(2)(ii), which requires the 

monitoring of point source discharges in 

accordance with 40 CFR parts 122, 123 

and 434, and can be approved. 

3. OAC 1501:13–4–15(E)(3)

Notification of Implementation and 

Completion of Each Step of the 

Abatement Plan 

Subsection 13–4–15(E)(3) is deleted 

from the performance standards at OAC 

1501:13–4–15(E). The deleted language 

provided that an operator shall ‘‘[n]otify 

the chief immediately prior to the start 

and upon completion of each step of the 

abatement plan.’’ There is no direct 

counterpart to the deleted State 

language in SMCRA or its implementing 

regulations, nor in the EPA 

requirements at 40 CFR part 434, 

subpart G concerning coal remining. 

The State’s provision at Subsection 

13–4–15(C)(4)(b) requires an operator to 

provide ‘‘a description and explanation 

of each step in the proposed abatement 

plan.’’ In addition, Subsection 13–4–

15(E)(4) provides than an operator must 

‘‘submit a certification by the 

supervising professional engineer of the 

proper construction of certain steps of 

the abatement plan which may include, 

but not be limited to, the completion of 

mine seals, compaction tests, subsurface 

drains and, where necessary, stability 

analyses.’’ As we noted above, EPA 

concurred with the proposed 

amendments and stated that it had no 

comments. Therefore, it appears that the 

proposed deletion does not render the 

performance standards at 13–4–15(E) 

inconsistent with EPA’s requirements at 

40 CFR part 434, subpart G concerning 

coal remining. We find that the 

proposed deletion of OAC 1501: 13–4–

15(E)(3) does not render the Ohio 

program less effective than the Federal 

regulations at 30 CFR 816/817.42

Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 57645

concerning compliance with all 

applicable State and Federal water 

quality laws and regulations and with 

the effluent limitations for coal mining 

promulgated by EPA at 40 CFR part 434 

and can be approved. 

4. OAC 1501:13–4–15(F)(1) Treatment 

of Discharges 

Subsection 13–4–15(F)(1) is revised to 

provide as follows:

(F) Treatment of discharges. 

(1) For any pre-existing discharges from or 

on the pollution abatement area, that are 

commingled with active mining wastewater, 

the operator shall comply with rule 1501:13–

9–04(B) of the Administrative Code, until the 

pollution abatement plan is implemented 

and the commingling is ceased.

Prior to being amended, this provision 

provided that ‘‘[e]xcept for pre-existing 

discharges from or on the pollution 

abatement area the operator shall 

comply with rule 1501:13–9–04 of the 

Administrative Code.’’ The proposed 

amendment, in effect, clarifies that 

when commingling occurs between 

pollutional discharges from the 

pollutional abatement area and drainage 

from the active mining, the alternate 

effluent limitations for the pollutional 

discharges from the pollutional 

abatement area no longer apply, and the 

commingled discharge must comply 

with the standards at OAC 1501:13–9–

04(B). Compliance with OAC 1501:13–

9–04(B) must continue until the 

pollution abatement plan is 

implemented and the commingling 

ceases. 

As amended, OAC 1501:13–4–15(F)(1) 

appears to be consistent with EPA’s 

requirements concerning effluent 

limitations for coal remining operations 

at 40 CFR 434.71(b). EPA’s requirements 

at 40 CFR 434.71(b) provide that a preexisting discharge that is intercepted by 

active mining or that is commingled 

with waste streams from active mining 

areas for treatment is subject to the 

provisions of 40 CFR 434.61 concerning 

the commingling of waste streams. 40 

CFR 434.71(b) also provides that Section 

434.61 applies to the waste stream only 

during the time when the pre-existing 

discharge is intercepted by the active 

mining or is commingled with active 

wastewater for treatment or discharge. 

After commingling has ceased, the preexisting discharge is subject to the 

provisions of 40 CFR part 434, subpart 

G, coal remining. 

There is no specific counterpart to the 

proposed language in either SMCRA or 

its implementing regulations. However, 

we find that Subsection 13–4–15(F)(1) is 

consistent with the Federal regulations 

at 30 CFR 816/817.42, which require 

compliance with all applicable State 

and Federal water quality laws and 

regulations and with the effluent 

limitations for coal mining promulgated 

by EPA at 40 CFR part 434 and can be 

approved. As we noted above, EPA 

concurred with the proposed 

amendments and stated that it had no 

comments.

5. OAC 1501:13–4–15(H)(3)(c) Criteria 

and Schedule for Release of Bonds on 

Pollution Abatement Area 

Subsection 13–4–15(H)(3)(c) has been 

revised by the addition of the phrase 

‘‘the total suspended solids meets the 

standard NPDES limits.’’ As amended, 

13–4–15(H)(3)(c) provides as follows:

(c) The operator has not exceeded the 

effluent limitations established in the 

remining NPDES permit from the time of 

bond release pursuant to paragraph (H)(2) of 

this rule for a period of two years from the 

discontinuance of treatment pursuant to 

paragraph (F)(5) of this rule; the total 

suspended solids meets the standard NPDES 

limits.

OAC 1501:13–4–15 concerns 

authorization to conduct coal mining on 

pollution abatement areas. Under OAC 

1501:13–4–15(H)(3)(c), the remaining 

portion of the bond may be released if, 

among other requirements, the total 

suspended solids effluent is in 

compliance with the standards 

identified in the NPDES remining 

permit. Under a remining NPDES permit 

issued by the State, the total suspended 

solids limitations would be either 

required to comply with the baseline 

effluent limitations identified under 

OAC 1501:13–4–15(C)(2), or with the 

exemption to total suspended solids and 

suspended solids under OAC 1501:13–

4–15(C)(2)(c). 

This new State provision appears to 

be consistent with EPA’s requirements 

concerning effluent limitations for total 

suspended solids for coal remining 

operations at 40 CFR 434.72(b)(1). 

Footnote 1 to the table of effluent 

limitations at 40 CFR 434.72(b)(1) 

provides that a pre-existing discharge is 

exempt from meeting standards in 

Subpart E of 40 CFR part 434 for total 

suspended solids and suspended solids 

when the permitting authority 

determines that Subpart E standards are 

infeasible or impractical based on the 

site-specific conditions of soil, climate, 

topography, steep slopes, or other 

baseline conditions provided that the 

operator demonstrates that significant 

reductions of total suspended solids and 

suspended solids will be achieved 

through the incorporation of sediment 

control best management practices into 

the Pollution Abatement Plan as 

required by paragraph (a) of Section 40 

CFR 434.72(a). The State counterpart to 

the EPA exemption for total suspended 

solids that is identified in the footnote 

to Table 1 at 40 CFR 434.72(b)(1) is the 

new State language at OAC 1501:13–4–

15(C)(2)(c) (see finding 2, above). 

There is no specific counterpart to the 

proposed language at Subsection 13–4–

15(H)(3)(c) either in SMCRA or its 

implementing regulations. However, we 

find that Subsection 13–4–15(H)(3)(c) is 

consistent with the Federal regulations 

at 30 CFR 816/817.42, which require 

compliance with all applicable State 

and Federal water quality laws and 

regulations and with the effluent 

limitations for coal mining promulgated 

by EPA at 40 CFR part 434, and with the 

Phase III bond release requirements at 

30 CFR 800.40(c)(3) and can be 

approved. As we noted above, EPA 

concurred with the proposed 

amendments and stated that it had no 

comments. 

IV. Summary and Disposition of 

Comments 

Public Comments 

No comments were received in 

response to our request for comments 

from the public on the proposed 

amendments (see Section II of this 

preamble). 

Federal Agency Comments 

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 Numbers OH–

2184–01). We received a response from 

one Federal agency (see below). 

Environmental Protection Agency (EPA) 

Comments 

Under 30 CFR 732.17(h)(11)(ii), we 

are required to obtain 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.).

On December 24, 2004, we requested 

concurrence on the amendment from 

EPA (Administrative Record Numbers 

OH–2184–01). The EPA responded by 

letter dated March 10, 2004, and an 

undated letter received by facsimile on 

March 18, 2004 (Administrative Record 

Numbers OH–2184–03 and OH–2184–

04, respectively). In its undated letter, 

EPA stated that it has ‘‘no comment to 

offer on those proposed revisions to 

Ohio Administrative Code Section 

1501:13–4–15 and 1501:13–1–02 and, as 

such, concur in those revisions.’’

57646 Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 

V. OSM’s Decision 

As we noted above in Section II., 

Submission of the Amendment, the 

DMRM stated in its submittal letter 

dated November 7, 2003, that the 

proposed amendment is intended to 

bring Ohio’s program up to date with 

the recent changes promulgated by the 

EPA on January 23rd, 2002, to 40 CFR 

part 434, subpart G Coal Remining. The 

DMRM’s November 7, 2003, letter also 

stated that it intends to update existing 

policy and procedure directives to 

capture the statistical and monitoring 

procedures for coal mining. The 

statistical and monitoring procedures 

that the State referred to are located in 

appendix B to 40 CFR part 434. 

It is our understanding that the Ohio 

program requires compliance with the 

Federal regulations at 40 CFR part 434, 

including compliance with the 

procedures to be used for establishing 

effluent limitations for pre-existing 

discharges at coal remining operations 

that are set forth in subpart G. appendix 

B to part 434. It is also our 

understanding that Ohio will not 

implement the regulations that we 

approve here until it completes 

updating its existing policy and 

procedure directives to capture the 

statistical and monitoring procedures 

for coal mining that are located in 

appendix B to part 434. Our approval of 

the proposed amendments in the above 

findings is based upon those 

understandings. 

Based on the above findings, we are 

approving the amendments submitted to 

us on November 7, 2003. 

To implement this decision, we are 

amending the Federal regulations at 30 

CFR part 935, which codify decisions 

concerning the Ohio program. We find 

that good cause exists under 5 U.S.C. 

553(d)(3) to make this final rule 

effective immediately. 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. Making this rule effective 

immediately will expedite that process. 

SMCRA requires consistency of State 

and Federal standards. 

VI. Procedural Determinations 

Executive Order 12630—Takings 

This rule does not have takings 

implications. This determination is 

based on the analysis performed for the 

counterpart Federal regulation. 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempt from review by 

the Office of Management and Budget 

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 this rule meets the 

applicable standards of Subsections (a) 

and (b) of that Section. However, these 

standards are not applicable to the 

actual language of State regulatory 

programs and program amendments 

because each program is drafted and 

promulgated by a specific State, not by 

OSM. Under Sections 503 and 505 of 

SMCRA (30 U.S.C. 1253 and 1255) and 

the Federal regulations at 30 CFR 

730.11, 732.15, and 732.17(h)(10), 

decisions on proposed State regulatory 

programs and program amendments 

submitted by the States must be based 

solely on a determination of whether the 

submittal is consistent with SMCRA and 

its implementing Federal regulations 

and whether the other requirements of 

30 CFR parts 730, 731, and 732 have 

been met. 

Executive Order 13132—Federalism 

This rule does not have federalism 

implications. SMCRA delineates the 

roles of the Federal and State 

governments with regard to the 

regulation of surface coal mining and 

reclamation operations. One of the 

purposes of SMCRA is to ‘‘establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ Section 503(a)(1) of 

SMCRA requires that State laws 

regulating surface coal mining and 

reclamation operations be ‘‘in 

accordance with’’ the requirements of 

SMCRA, and Section 503(a)(7) requires 

that State programs contain rules and 

regulations ‘‘consistent with’’

regulations issued by the Secretary 

pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on federallyrecognized Indian tribes and have 

determined that the rule does not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

The basis for this determination is that 

our decision is on a State regulatory 

program and does not involve Federal 

regulations involving Indian lands.

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211 which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

National Environmental Policy Act 

This rule does not require an 

environmental impact statement 

because Section 702(d) of SMCRA (30 

U.S.C. 1292(d)) provides that agency 

decisions on proposed State regulatory 

program provisions do not constitute 

major Federal actions within the 

meaning of Section 102(2)(C) of the 

National Environmental Policy Act (42 

U.S.C. 4332(2)(C)). 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3507 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic 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 counterpart Federal regulations for 

which an economic analysis was 

prepared and certification made that 

such regulations would not have a 

significant economic effect upon a 

substantial number of small entities. In 

making the determination as to whether 

this rule would have a significant 

economic impact, the Department relied 

upon 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;

Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 57647

(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 upon the 

analysis performed under various laws 

and executive orders for the counterpart 

Federal regulations. 

Unfunded Mandates

This rule will not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based upon 

the analysis performed under various 

laws and executive orders for the 

counterpart Federal regulations.

List of Subjects in 30 CFR Part 948 

Intergovernmental relations, Surface 

mining, Underground mining.

Dated: August 12, 2004. 

Brent Wahlquist, 

Regional Director, Appalachian Regional 

Coordinating Center.

■ For the reasons set out in the preamble, 

30 CFR part 935 is amended as set forth 

below:

PART 935—OHIO

■ 1. The authority citation for part 935 

continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

■ 2. Section 935.15 is amended in the 

table by adding a new entry in 

chronological order by ‘‘Date of final 

publication’’ to read as follows:

§ 935.15 Approval of Ohio regulatory 

program amendments.

* * * * *

Original amendment submission 

date Date of final publication Citation/description 

* * * * * * * 

November 7, 2003 ......................... September 27, 2004 ...................... OAC 1501:13–1–02(A), (D), (N), (O), (R), (MMMM), (OOOO); 

1501:13–4– 15(C)(2)(a),(b),(c); (C)(3)(b); (E)(3); (F)(1), (H)(3)(c). 

[FR Doc. 04–21539 Filed 9–24–04; 8:45 am] 

BILLING CODE 4310–05–P

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[CGD05–04–160] 

RIN 1625–AA08 

Special Local Regulations for Marine 

Events; Sunset Lake, Wildwood Crest, 

NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

SUMMARY: The Coast Guard is 

establishing a special local regulation 

during the ‘‘Sunset Lake Hydrofest,’’ a 

marine event to be held October 2 and 

3, 2004, on the waters of Sunset Lake, 

Wildwood Crest, New Jersey. This 

special local regulation is necessary to 

provide for the safety of life on 

navigable waters during the event. This 

action will restrict vessel traffic in 

portions of Sunset Lake during the 

event.

DATES: This rule is effective from 7 a.m. 

on October 2, 2004, to 6 p.m. on October 

3, 2004.

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket are part of docket CGD05–04–

160 and are available for inspection of 

copying at Commander (oax), Fifth 

Coast Guard District, 431 Crawford 

Street, Portsmouth, Virginia 23704–

5004, between 9 a.m. and 2 p.m., 

Monday through Friday, except Federal 

holidays.

FOR FURTHER INFORMATION CONTACT:

Dennis Sens, Project Manager, Auxiliary 

and Recreational Boating Safety Branch, 

at (757) 398–6204.

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

We did not publish a notice of 

proposed rulemaking (NPRM) for this 

regulation. Under 5 U.S.C. 553(b)(B) and 

(d)(3), the Coast Guard finds that good 

cause exists for not publishing a NPRM 

and for making this regulation effective 

less than 30 days after publication in the 

Federal Register. Publishing a NPRM 

and delaying its effective date would be 

contrary to public interest, since 

immediate action is needed to protect 

event participants, spectator craft, and 

other vessels transiting the event area 

from the dangers in high-speed power 

boats racing. Additionally, the 

parameters of the safety zone are limited 

to the race area, and the length of time 

this zone will be effective is limited to 

the times and dates of the event. 

Background and Purpose 

On October 2 and 3, 2004, the Sunset 

Lake Hydrofest Association will sponsor 

the ‘‘Sunset Lake Hydrofest’’ on the 

waters of Sunset Lake near Wildwood 

Crest, New Jersey. The event will 

consist of approximately 100 inboard 

hydroplanes, Jersey Speed Skiffs, and 

flat-bottom Ski boats racing in heats 

counter-clockwise around an oval 

racecourse. A fleet of approximately 100 

spectator vessels is expected to gather 

nearby to view the competition. Due to 

the need for vessel control during the 

event, vessel traffic will be temporarily 

restricted to provide for the safety of 

participants, spectators, and transiting 

vessels. 

Discussion of Rule 

The Coast Guard is establishing a 

temporary special local regulation on 

specified waters of Sunset Lake. The 

temporary special local regulation will 

be enforced from 7:30 a.m. to 4:30 p.m. 

on October 2 and 3, 2004, and will 

restrict general navigation in the 

regulated area during the event. Except 

for participants and vessels authorized 

by the Coast Guard Patrol Commander, 

no person or vessel will be allowed to 

enter or remain in the regulated area. 

This regulation is needed to control 

vessel traffic during the event to 

enhance the safety of participants, 

spectators and transiting vessels. 

Regulatory Evaluation 

This rule is not a ‘‘significant 

regulatory action’’ under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, and does not 

require an assessment of potential costs 

and benefits under section 6(a)(3) of that 

Order. The Office of Management and 

Budget has not reviewed it under that 

Order. It is not ‘‘significant’’ under the 

regulatory policies and procedures of 

the Department of Homeland Security 

(DHS).