Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations 43977 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 935 

[SATS No. OH–255–FOR; Docket No. OSM– 

2013–0012; 

S1D1SSS08011000SX066A000178S180110; 

S2D2SSS08011000SX066A00017XS501520] 

Ohio Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approval of 

amendment with two exceptions. 

SUMMARY: The Office of Surface Mining 

Reclamation and Enforcement (OSMRE) 

is approving, with two exceptions, an 

amendment to the Ohio regulatory 

program (the Ohio program) under the 

Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act). Ohio’s submission demonstrates 

its intent to revise its program by 

amending the Ohio Reclamation 

Commission’s (the Commission) 

procedural rules. By submission of the 

amended procedural rules, found within 

Ohio Administrative Code (OAC) at 

sections 1513–3–01 through 1513–3–22, 

Ohio proposed to revise the Ohio 

program pursuant to the additional 

flexibility afforded by the revised 

Federal regulations at 30 CFR 732.17, 

and SMCRA, as amended. As a result of 

review of the Ohio program, the 

proposed amendment, and an 

opportunity for public comments, 

OSMRE has determined that the 

majority of the submittal is no less 

stringent than SMCRA and no less 

effective than the corresponding 

regulations. The two revisions not 

approved by OSMRE are found within 

OAC at section 1513–3–07(A), which 

relates to intervention. OSMRE’s 

rationale for not approving these 

proposed revisions is explained in 

depth below. 

DATES: Effective Date: September 28, 

2018. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Ben Owens, Chief, Pittsburgh Field 

Division, OSMRE, Three Parkway 

Center, 2nd Floor, Pittsburgh, 

Pennsylvania 15220. Telephone: (412) 

937–2827. Email: bowens@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Ohio Program 

II. Submission of the Amendment 

III. OSMRE’s Findings 

IV. Summary and Disposition of Comments 

V. OSMRE’s Decision 

VI. Procedural Determinations 

I. Background on the Ohio Program 

Section 503(a) of SMCRA allows a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its State program 

includes, among other things, state laws 

and regulations that govern surface coal 

mining and reclamation operations in 

accordance with the Act and consistent 

with the Federal regulations. See 30 

U.S.C. 1253(a)(1) and (7). On the basis 

of these criteria, the Secretary of the 

Interior conditionally approved the 

Ohio program effective August 16, 1982. 

Notice of the conditional approval of 

Ohio’s permanent regulatory program 

was published in the Federal Register 

on August 10, 1982 (47 FR 34688). You 

can also find later actions concerning 

Ohio’s program and program 

amendments at 30 CFR 935.11, 935.15, 

and 935.30. 

II. Submission of the Proposed 

Amendment 

For background purposes, the 

Commission is an adjudicatory board 

established pursuant to Ohio Revised 

Code (ORC) section 1513.05. The 

Commission is the office to which 

administrative appeals may be filed by 

any person claiming to be aggrieved or 

adversely affected by a decision of the 

Ohio Department of Natural Resources, 

Chief of the Division of Mineral 

Resources Management (DMRM), 

relating to mining and reclamation 

issues. Following an adjudicatory 

hearing, the Commission affirms, 

vacates, or modifies the DMRM Chief’s 

decision. The Commission is comprised 

of eight members appointed by the 

Governor of Ohio. Members represent a 

variety of interests relevant to mining 

and reclamation issues. The 

Commission adopts rules to govern its 

procedures. The Commission’s rules are 

found at OAC section 1513–3–01 

through 1513–3–22 and are the subject 

of the current amendment to the Ohio 

program. By letter dated November 6, 

2013, Ohio submitted an amendment to 

its program, (Administrative Record No. 

OH–2192–01). Ohio’s submittal was 

prompted by requirements within the 

Ohio statute that all state agencies must 

review their administrative rules every 

five years. Consistent with this 

requirement, the Commission revised its 

rules to ensure an orderly, efficient, and 

effective appeal process. By submitting 

the amendment to OSMRE, Ohio 

exercised its ability to revise the Ohio 

program pursuant to the additional 

flexibility afforded by the revised 

Federal regulations at 30 CFR 732.17, 

and SMCRA, as amended, to improve 

operational efficiency of the Ohio 

program and to ensure Ohio’s proposed 

provisions are consistent, and in 

accordance, with SMCRA and are no 

less effective than the corresponding 

Federal regulations. 

OSMRE announced receipt of the 

proposed amendment in the May 20, 

2014, Federal Register (79 FR 28854). In 

the same document, OSMRE opened the 

public comment period and provided an 

opportunity for a public hearing or 

meeting. 

OSMRE did not hold a public hearing 

or meeting, as neither were requested. 

The public comment period closed on 

June 19, 2014. OSMRE did not receive 

any comments. 

III. Summary of the Ohio Amendment 

and OSMRE’s Findings on the 

Amendment 

Following is a summary of various 

provisions of the amendment that Ohio 

submitted, as well as OSMRE’s findings 

on whether those provisions are 

consistent, and in accordance, with 

SMCRA and are no less effective than 

the Federal regulations at 30 CFR 732.15 

and 732.17. As described below, 

OSMRE is approving the amendment 

with the exception of two provisions in 

the proposed rule, one at section 1513– 

3–07(A), relating to the intervention of 

a party, and the other at 1513–3– 

07(D)(4), relating to the effect of 

intervention. Any revisions that we do 

not specifically discuss below concern 

non-substantive wording or editorial 

changes. 

1513–3–01 Definitions 

These changes clarify existing 

definitions and provide additional 

definitions. Specifically, the definition 

of ‘‘appellant’’ is clarified to explicitly 

state that actions of the DMRM Chief are 

subject to appeal to the Commission. 

The definition of ‘‘final order’’ clarifies 

that the resolution of matters presented 

on appeal will be in writing and 

consistent with section 1513–3–19 of 

the OAC. The definition of ‘‘full party’’ 

is added. This definition will define 

‘‘full party’’ to include the appellant, the 

appellee, and any intervenor 

participating in an appeal as defined by 

the OAC at section 1513–3–07 entitled, 

‘‘Intervention.’’ Additionally, the term, 

‘‘interested persons in an appeal 

pending before the Commission’’ is 

added. This term, as approved, defines 

interested person as the appellant, the 

appellee, any intervenors, or and any 

other persons who have notified the 

Commission of an interest in a pending 

appeal and have requested to be notified 

of hearings in said appeal. The 


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definition of ‘‘intervenor’’ is modified to 

remove the word ‘‘one’’ and replace it 

with the term, ‘‘any person.’’ The 

definition of ‘‘person’’ is modified to 

encompass limited liability companies. 

Within the definition of ‘‘regular 

business hours’’ the terms ‘‘chairman’’ 

and ‘‘vice-chairman’’ are replaced by 

‘‘chairperson’’ and ‘‘vice-chairperson,’’ 

respectively. The remaining 

modifications renumber the terms to 

facilitate the addition of new terms. 

OSMRE Finding: We have determined 

that the definitions of ‘‘appellant,’’ 

‘‘final order,’’ ‘‘full party,’’ ‘‘interested 

persons in an appeal pending before the 

Commission,’’ and ‘‘regular business 

hours’’ do not have Federal 

counterparts. However, they are not 

inconsistent with SMCRA or the Federal 

regulations. Therefore, we approve these 

definitions. The revised definition of 

‘‘intervenor’’ remains consistent with its 

Federal counterpart at 43 CFR 4.1110 

and is therefore approved. There is no 

direct Federal counterpart to the revised 

portion of Ohio’s definition of ‘‘person,’’ 

as the Federal counterpart does not 

specifically include limited liability 

companies. However, the Federal 

definition does include corporations 

and partnerships; limited liability 

companies are essentially amalgams of 

those two business structures. 

Therefore, the change to the State’s 

definition does not render it 

inconsistent with the Federal 

regulations at 30 CFR 700.5, and we are 

approving the change. 

1513–3–02 Internal Regulations 

Paragraph (B) of Section 1513–3–02, 

which is entitled, ‘‘Quorum,’’ is 

modified to clarify the conditions for 

satisfying quorum requirements. Four 

members of the Commission must be 

present to qualify as a quorum, and an 

action by the Commission is not valid 

unless at least four members concur. 

Additionally, the rule clarifies the 

procedure in the event concurrence is 

not reached. As amended, four members 

must agree that concurrence is not met. 

Further, when concurrence is not met, 

the existing record of proceedings is to 

be submitted to all members of the 

Commission who did not attend any 

portion of the proceedings. These 

members may determine if they wish to 

participate in the appeal. Following 

review of the record, they must 

participate in the rendering of a 

decision. The provision for a tied vote 

is eliminated. 

The amendment provides that, in the 

event that a concurrence cannot be 

reached, a decision must be rendered 

stating such and an Order must be 

issued affirming the action of the 

DMRM Chief under review. 

Furthermore, the rule clarifies that in 

the event a Commission member 

considered as part of the quorum misses 

any part of the proceeding, he or she 

must review the record before 

participating in the rendering of a 

decision. Audio-electronic hearings 

before the Commission constitute the 

official record of the hearing. However, 

other methods of creating the official 

record are permitted upon the 

Commission’s discretion, by joint 

motion of the parties, or by motion of 

a party and subsequent approval by the 

Commission. Additionally, the issuance 

and service of subpoenas must comply 

with the Ohio Rules of Civil Procedure, 

and, as applicable, section 119.094 of 

the ORC, including its requirement that 

a fee must be paid to witnesses outside 

the county in which a hearing must be 

held. 

OSMRE Finding: We have determined 

that the provisions in this section do not 

have direct Federal counterparts. 

However, they are not inconsistent with 

the Federal regulations at 43 CFR 4.2, 

which governs, generally, membership 

of administrative boards and decisions 

of those boards. Therefore, we approve 

the proposed changes to OAC 1513–3– 

02. 

1513–3–03 Appearance and Practice 

Before the Commission 

The rule clarifies that any party may 

appear on their own behalf or may be 

represented by an attorney at law 

admitted to practice according to Ohio 

law. This includes the admittance of 

attorneys pro hac vice. 

OSMRE Finding: We have determined 

that the provisions in this section are 

consistent with the Federal regulations 

at 43 CFR 1.3 and 4.3, which govern, 

respectively, who may practice in 

Departmental administrative 

proceedings, and representation before 

appeals boards. Therefore, we approve 

the changes to OAC 1513–3–03. 

1513–3–04 Appeals to the Reclamation 

Commission 

Although the majority of the changes 

to this section are clerical and nonsubstantive, the rule clarifies that email 

addresses, if available, should be 

included in the notice of appeal. 

Additionally, appellants must include a 

copy of the written notice, order or 

decision of the DMRM Chief to be 

reviewed. Appellants are required to 

comply with the requirements of section 

1513.02 of the ORC, pertaining to the 

power and duties of the DMRM Chief, 

and must include and forward the 

amount of any penalty for placement in 

a penalty fund. The rule adds a section 

describing information that the 

appellant may include in the notice of 

appeal. Appellants may, but are not 

required to, identify the area to which 

the notice, Order, or decision relates; 

state whether or not the Commission is 

requested to view the site; and state 

whether or not the appellant waives the 

right to have the hearing within the time 

frames established in section 

1513.13(B), Appeal of notice of 

violation, order or decision to 

reclamation commission of the ORC. 

When filing a notice of appeal 

pertaining to the review of a decision to 

approve or disapprove a permit 

application, an appellant must comply 

with section 1513.07, Coal mining and 

reclamation permit of the ORC, and 

must file the notice of appeal within 30 

days of notice of the DMRM Chief’s 

determination. 

It is further clarified that a notice of 

appeal is deemed filed when complete 

notice has been provided. Further, a 

notice of appeal may be amended 

without leave of the Commission during 

the time allowed for original filing. 

However, amendment of a notice of 

appeal may not be employed to cure 

jurisdictional defects in the filing 

following the close of this time period. 

Following the close of this time period, 

a notice of appeal may be amended by 

leave of the Commission. 

OSMRE Finding: We have determined 

that the provisions in this section are 

consistent with the Federal regulations 

governing the varying types of 

administrative appeals of decisions of 

OSMRE. These regulations are at 43 CFR 

4.1107, 4.1115, 4.1153, 4.1164, 4.1184, 

4.1263, 4.1282, 4.1303, 4.1363, 4.1372, 

and 4.1382. Therefore, we approve the 

changes to OAC 1513–3–04. 

1513–3–05 Filing and Service of 

Papers 

This section of the rule clarifies that 

the filing of a notice of appeal must 

conform to section 1513.13 of the ORC, 

Appeal to the Commission. The rule 

alters the definition of when a notice of 

appeal is deemed filed. The proposed 

amendment states that a notice of 

appeal will be deemed filed when 

received or if the notice of appeal is sent 

by certified mail, registered mail, or 

express mail, it will be deemed filed on 

the date of the postmark placed upon 

the sender’s receipt by the postal 

service. However, documents requesting 

temporary relief are deemed filed when 

received by the Commission. 

Additionally, all filings other than a 

notice of appeal or a request for 

temporary relief, that are not sent to the 

Commission by certified mail, registered 


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mail, or express mail will be deemed 

filed with the Commission on the day 

on which the filings are received, and 

those that are sent by such means, will 

be deemed filed on the postmark date 

placed upon the sender’s receipt by the 

postal service. Further, following 

initiation of an appeal, the Commission 

may, through order, establish a filing 

and service protocol, which may 

include the electronic transmission of 

documents. 

OSMRE Finding: We have determined 

that the provisions in this section are 

consistent with the Federal regulations 

at 43 CFR 4.1107, which governs the 

filing of documents, and 43 CFR 4.1109, 

which governs service of documents. 

Therefore, we approve the changes to 

OAC 1513–3–05. 

1513–3–06 Computation and 

Extension of Time 

The majority of the changes to this 

section are non-substantive and consist 

of renumbering for clarity. However, 

section (C)(1) is altered to definitively 

read that the Commission may not 

lengthen or reduce the time period 

allowed for any response to, or filing of, 

a request for temporary relief. 

OSMRE Finding: We have determined 

that the provisions in this section do not 

have direct Federal counterparts. 

However, they are not inconsistent with 

the Federal regulations at 43 CFR 4.1261 

and 4.1264, which govern, respectively, 

applications for temporary relief and 

responses thereto. Therefore, we 

approve the changes to OAC 1513–3–06. 

1513–3–07 Intervention 

Ohio submitted a revision to this rule 

to require that any person seeking leave 

to intervene in an appeal before the 

Commission must do so within ten days 

prior to the beginning of an evidentiary 

hearing on the merits of an appeal, 

unless waived by the Commission for 

extraordinary cause. OSMRE is not 

approving this section of the 

amendment as it is inconsistent with the 

corresponding provisions of the Federal 

regulations found at 43 CFR 4.1110(a). 

The Federal counterpart allows any 

person, including a State or OSMRE, to 

petition to intervene at any stage of a 

proceeding. The provision proposed by 

Ohio prejudices a potential intervenor 

by imposing time limits on petitions to 

intervene. Although the proposed 

revision would allow intervention after 

the ten days preceding an evidentiary 

hearing, upon waiver by the 

Commission, the potential intervenor 

must still demonstrate extraordinary 

cause. This additional hurdle is not 

imposed by the Federal counterpart. 

Therefore, OSMRE is not approving the 

following sentence in section 1513–3– 

07(A), of the proposed amendment: ‘‘A 

petition for leave to intervene must be 

filed at least ten days prior to the 

beginning of an evidentiary hearing on 

the merits of an appeal, unless waived 

by the commission for extraordinary 

cause.’’ 

Also, the deletion of 1513–3–07(D)(4) 

is less effective than the Federal 

regulations found at 43 CFR 4.1110. 

This deletion would prevent the 

Commission from considering the effect 

of intervention on the agency’s ability to 

implement its statutory mandates. 

However, the Federal regulation at 43 

CFR 4.1110(d)(4) explicitly allows the 

IBLA to consider this effect in deciding 

whether intervention is appropriate. 

The deletion of this provision in the 

OAC would render the Ohio program 

less effective by preventing its statutory 

mandate from receiving due 

consideration in Commission decisions 

on intervention. Therefore, OSMRE is 

not approving the deletion of OAC 

1513–3–07(D)(4). 

There is only one other substantive 

amendment to this section. The change, 

at section 1513–13–07(F), will allow the 

filing of amicus briefs and oral argument 

at hearing by amicus curiae upon leave 

by, and at the discretion of, the 

Commission. This provision does not 

have direct Federal counterparts. 

However, it is not inconsistent with 

relevant sections of 43 CFR part 4. 

Therefore, this provision of OAC 1513– 

3–07 is approved. 

1513–3–08 Temporary Relief 

The amendments to this section are 

non-substantive and primarily consist of 

language to make references gender 

neutral. Therefore, the amendments are 

approved. 

1513–3–10 Discovery 

Previous discovery rules are amended 

to clarify parties to an appeal may 

obtain discovery in accordance with the 

provisions of rules 26 through 36 of the 

Ohio Rules of Civil Procedure. 

Additionally, the rule explains that all 

parties, including intervenors, are 

subject to discovery and that discovery 

from non-parties must be done through 

subpoena. In the event a party fails to 

obey an order to compel or permit 

discovery issued by the Commission, 

the Commission may make such orders 

in regard to the failure as it deems just. 

OSMRE Finding: We have determined 

that the provisions in this section are 

consistent with the Federal regulations 

at 43 CFR 4.1130 through 4.1141. 

Therefore, we approve the changes to 

OAC 1513–3–10. 

1513–3–11 Motions 

This revision moves the provision at 

section (B), which allows a party to 

make a written motion requesting a 

hearing to be conducted before the full 

Commission, rather than before a 

hearing officer for the Commission, to 

section 1513–3–18, Reports and 

recommendations of the hearing officer. 

The revision to this section also 

provides that objections to jurisdiction 

are non-waivable and may be raised at 

any point in an appeal, consistent with 

the Ohio Rules of Civil Procedure. 

OSMRE Finding: We have determined 

that the provisions in this section do not 

have direct Federal counterparts. 

However, they are not inconsistent with 

the Federal regulations at 43 CFR 

4.1112. Therefore, we approve OAC 

1513–3–11. 

1513–3–12 Pre-Hearing Procedures 

This revision allows the Commission 

or its hearing officer, at its own 

initiative, or at the request of any party, 

to schedule and hold pre-hearing 

conferences on issues on appeal. 

OSMRE Response: We have 

determined that the proposed change to 

this section is consistent with 43 CFR 

4.1121(b). Therefore, we are approving 

the change to OAC 1513–3–12. 

1513–3–14 Site Views and Location of 

Hearings 

This rule specifies the locations of 

Commission hearings. It also clarifies 

the circumstances in which the 

Commission will conduct site views of 

mining operations, reclamation 

operations, or other relevant features. 

The rule also explicitly states that the 

Commission will control and direct the 

manner of conducting a site view. 

Specifically, where a site view is 

conducted on property subject to a 

mining and reclamation permit, parties 

must be informed prior to the site view 

of any necessary personal protective 

equipment, including hard hat, safety 

glasses, hearing protection, safety-toed 

shoes or boots and additional 

equipment that may be required on 

mine property as determined by the 

mine operator. Additionally, the 

Commission reserves the right to limit 

the number of persons who participate 

in the site view. Additionally, a hearing 

related to a cessation of mining or a 

motion for temporary relief must be 

held in proximity to the subject area of 

the hearing for the convenience of the 

Commission and the parties. All other 

proceedings will continue to be held in 

Columbus, Ohio, or at any convenient 

public location selected by the 

Commission. 


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OSMRE Response: We have 

determined that the provision regarding 

the location for hearings related to 

temporary relief, has no direct Federal 

counterpart, but is not inconsistent with 

the Federal regulation found at 43 CFR 

4.1106, which governs location of 

hearing sites, generally. The Federal 

regulation states that the administrative 

law judge must consider convenience of 

the parties in determining the hearing 

site. The remaining provisions in this 

section do not have Federal 

counterparts. However, they are not 

inconsistent with SMCRA or its 

implementing regulations. Therefore, 

we are approving the changes to OAC 

1513–3–14. 

1513–3–15 Consolidation of 

Proceedings 

The Commission is given discretion to 

administer consolidated appeals in the 

manner it deems most appropriate. 

OSMRE Response: We have 

determined that the provision in this 

section is consistent with the Federal 

regulation at 43 CFR 4.1113, which 

grants the administrative law judge the 

authority to consolidate proceedings. 

Therefore, we are approving OAC 1513– 

3–15. 

1513–3–16 Conduct of Evidentiary 

Hearings 

This rule applies to any person 

participating in an appeal before the 

Commission and definitively states that 

the Commission will determine the 

conduct of the hearing and the order of 

the presentation of evidence. 

Additionally, it further clarifies that the 

Commission is not bound by the formal 

rules of evidence as promulgated by the 

Ohio Supreme Court. The rule also 

establishes a procedure for in-camera 

inspection of documents claimed to 

contain proprietary business 

information or trade secrets. 

Additionally, the rule specifically 

details the number of copies of 

proposed exhibits a party must make 

available. The rule also adds a provision 

to clarify that a continuing objection is 

sufficient to preserve objection to an 

area of evidence. In regard to written 

testimony, affidavits may be admitted 

only if the evidence is otherwise 

admissible and all full parties agree that 

affidavits may be used in lieu of oral 

testimony. This alteration is limiting as 

it adds the adjective ‘‘full,’’ thus 

excluding certain parties. Parties 

wishing to use affidavits in lieu of oral 

testimony must serve all full parties 

with a copy of the affidavit at least 15 

days before a hearing. It is clarified that 

in the event a declarant is unavailable, 

testimony may be offered in compliance 

with rule 804 of the Ohio Rules of 

Evidence. As proposed, objections to 

deposition testimony must be resolved 

in accordance with rule 32 of the Ohio 

Rules of Civil Procedure. Further, in 

instances when a party is attempting to 

use written testimony, any full party 

must present the Commission a 

schedule of objections to the written 

testimony prior to the commencement 

of the hearing. This is a change to the 

former rule that allowed objection at the 

hearing following receipt of the 

testimony into evidence. Regarding the 

presentation of witnesses, the 

Commission may require that a witness 

be called only once during a hearing 

and that the parties conduct all 

examinations at the time when the 

witness is called to testify. An Ohio 

notary may be given authority to 

administer oaths and affirmations to 

witnesses. Further, the Commission is 

given authority to require the parties to 

submit written closing arguments, posthearing briefs, or proposed findings of 

fact and conclusions of law. 

OSMRE Finding: We have determined 

that the provisions in this section are 

not inconsistent with the Federal 

regulations found at 43 CFR 4.1120– 

4.1129. Therefore, we are approving the 

changes to OAC 1513–3–16. 

1513–3–17 Voluntary Dismissal and 

Settlement 

The adjective ‘‘full’’ is added to 

section (B), relative to agreement to 

settle. This addition limits settlements 

to those where all parties (i.e., appellant, 

appellee, and intervenor, if any) agree to 

do so. In the event an appeal is settled 

during the course of a hearing, the 

parties must enter into the record a 

statement acknowledging that they have 

reached an agreement that all issues 

have been resolved, and that a 

withdrawal of the appeal will be filed. 

OSMRE Finding: We have determined 

that the provisions in this section are 

consistent with the Federal regulations 

at 43 CFR 4.1111. Therefore, we are 

approving the changes to OAC 1513–3– 

17. 

1513–3–18 Reports and 

Recommendations of the Hearing 

Officer 

Section 1513–3–11(B), discussed 

above, is inserted in this section. This 

section allows a party to make a written 

motion requesting that a hearing be 

conducted before the full Commission, 

rather than before a hearing officer for 

the Commission. 

The existing regulations required 

Reports and Recommendations of 

hearing officers to be submitted to the 

Commission within a time reasonably 

sufficient to allow the Commission to 

issue timely Orders. This amendment 

incorporates a proviso to that rule that 

in the event a decision before a hearing 

officer must be rendered within a 

specified time period, the appeal will be 

heard by the Commission, rather than 

by a hearing officer, unless there has 

been a waiver of the right to an 

expedited hearing. 

OSMRE Findings: We have 

determined that the provisions in this 

section do not have direct Federal 

counterparts. However, these provisions 

are not inconsistent with the Federal 

regulations at 43 CFR 4.1120 through 

4.1129. Therefore, we are approving the 

changes to OAC 1513–3–18. 

1513–3–19 Decisions of the 

Commission 

This rule clarifies the procedures the 

Commission will follow when issuing 

decisions. Additionally, the rule allows 

the remission, within 30 days after 

issuing a final decision, of pre-paid civil 

penalties, where penalties are under 

appeal. The rule also provides more 

detailed information about the 

procedures that will be followed if 

errors are found in Commission 

decisions. Specifically, during the time 

period after a final decision has been 

issued by the Commission, clerical 

mistakes in the final decision and errors 

therein from oversight or omission may 

be corrected before an appeal of the 

Commission’s final decision is filed. 

Thereafter, while an appeal is pending 

before an appellate court, a final 

decision may be so corrected with leave 

of the court. However, the correction of 

a clerical mistake or error in a final 

decision does not extend the time for 

filing a notice of appeal in the appellate 

court. Further, this rule extends the time 

the Commission may remit, transfer, or 

accept payment of an increased penalty 

assessment amount from fifteen days to 

thirty days. 

OSMRE Finding: We have determined 

that most of the provisions in this 

section do not have direct Federal 

counterparts. However, these provisions 

are not inconsistent with SMCRA or its 

implementing regulations, nor 

inconsistent with Departmental hearings 

and appeals regulations found at 43 CFR 

part 4, subparts B and L. Moreover, the 

amendments pertaining to civil 

penalties are consistent with the Federal 

regulations at 43 CFR 4.1157. Therefore, 

we are approving the changes to OAC 

1513–3–19. 

1513–3–20 Costs 

The former ‘‘Costs’’ section is 

rescinded. Previously, this section 

allowed the Commission to assess costs 


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against a party to an appeal. The 

Commission does not, sua sponte, 

assess such costs, and the rule has not 

been used by the Commission. 

Moreover, filing fees are not required for 

Commission appeals. Additionally, the 

award of costs and expenses, following 

petition, are addressed fully in the 

following section, Awards of Costs and 

Expenses. 

OSMRE Findings: We have 

determined that the provisions removed 

by rescission of this section are replaced 

by the provisions described in OAC 

1513–3–21. As discussed in the OSMRE 

Findings for OAC 1513–3–21, we have 

determined that the provisions in the 

latter section are not inconsistent with 

SMCRA or regulations at 43 CFR part 4, 

subparts B and L. Therefore, OSMRE 

determines the rescission of this section 

does not render the Ohio program 

inconsistent with the Federal 

regulations at 43 CFR 4.1290 through 

4.1296, and the rescission is approved. 

1513–3–21 Award of Costs and 

Expenses 

This rule clarifies the previous 

version of this rule approved by OSMRE 

in 2010. See 75 FR 72947, allowing for 

the recovery of costs and expenses, 

including attorneys’ fees to certain 

parties. The amendment clarifies that 

the Commission is also authorized to 

hear petitions for costs, including 

attorneys’ fees and expenses, where 

petitions are filed by the DMRM and 

allege bad faith or harassment by 

another party. These petitions must 

conform to section 1513.13 of the ORC. 

Petitions must be filed within 60 days 

of receipt of the final decision of the 

Commission in the action in which the 

fees were incurred. Petitions by the 

DMRM must include an affidavit 

detailing all costs and expenses, 

receipts, and when attorneys’ fees are 

requested, evidence that the hours 

expended and the fees requested are 

reasonable for the appeal and for the 

locality. A person served with a copy of 

a petition for costs and expenses must 

file an answer thereto within 30 days. 

Awards of attorney fees are appealable 

consistent with the ORC. This rule 

clarifies that parties may receive awards 

of costs and expenses, including 

attorneys’ fees, expert witness fees, and 

fees reasonably incurred as a result of 

proceedings before the Commission, and 

specifies that fees incurred in seeking 

fees may also be awarded. 

However, the rule at 1513–3–21(D) 

clarifies that Ohio’s statute and 

regulations relevant to minerals—not 

including coal or peat, found within 

Chapter 1514 of the Revised Code, do 

not include an award of costs and 

expenses provision similar to those 

required in Chapter 1513. Specifically, 

Ohio’s rule references the provision 

found within section 1514.09 that 

specifically explains that attorneys’ fees, 

costs, and expenses may not be 

recovered for minerals. Chapter 1514 is 

not required to be consistent with 

SMCRA or its implementing regulations, 

as it does not pertain to coal regulation. 

Because Chapter 1514 is not part of the 

approved Ohio program, OSMRE is not 

making a determination on this portion 

of the Ohio rule. 

OSMRE Findings: We have 

determined that the provisions in this 

section are no less effective than the 

Federal regulations at 43 CFR 4.1290– 

4.1296. Therefore, we approve the 

changes to OAC 1513–3–21. 

1513–3–22 Appeals From Commission 

Decisions 

This rule clarifies that parties to 

actions involving coal mining and 

reclamation brought under section 1513 

of the ORC may seek review of a 

Commission decision in the court of 

appeals for the county in which the 

activity addressed by the decision of the 

Commission occurred, is occurring, or 

will occur. Moreover, this rule clarifies 

that parties to actions involving 

industrial minerals mining and 

reclamation and brought under section 

1514.09, Representation on commission 

for appeals, of the ORC may seek review 

of a Commission decision in the court 

of common pleas in the county where 

the operation addressed by the decision 

of the Commission is located, or in the 

Franklin County Court of Common 

Pleas. However, Chapter 1514 is not 

required to be consistent with SMCRA 

or its implementing regulations, as it 

does not pertain to coal regulation. 

Because Chapter 1514 is not part of the 

approved Ohio program, OSMRE is not 

making a determination on this portion 

of the Ohio rule. 

Additionally, the rules provide the 

Commission with the authority to 

control the transcription and 

transmission of the record to the 

appropriate appellate court. 

OSMRE Findings: We have 

determined that the provisions in this 

section are consistent with Section 526 

(a)(2) of SMCRA (30 U.S.C. 1276(a)(2)), 

and with the Federal regulations at 30 

CFR 775.13(b) and 43 CFR 4.1369. 

Therefore, we are approving the changes 

to OAC 1513–3–22. 

IV. Summary and Disposition of 

Comments 

Public Comments 

OSMRE asked for public comments in 

the May 20, 2014, Federal Register (79 

FR 28854) (Administrative Record No. 

OH–2192–04). OSMRE did not receive 

any public comments or a request to 

hold a public meeting or public hearing. 

Federal Agency Comments 

Under Federal regulations at 30 CFR 

732.17(h)(11)(i) and section 503(b) of 

SMCRA, OSMRE requested comments 

on the amendment from various Federal 

agencies with an actual or potential 

interest in the Ohio program 

(Administrative Record No. OH–2192– 

02). Specifically, OSMRE solicited 

comment from the Advisory Council on 

Historic Preservation, the United States 

Department of Labor, the United States 

Fish and Wildlife Service, the United 

States Environmental Protection Agency 

(EPA), the Ohio Historic Preservation 

Office, and the United States 

Department of Agriculture. OSMRE did 

not receive any response to the request 

for comments. 

Environmental Protection Agency 

Concurrence and Comments 

Pursuant to the Federal regulations at 

30 CFR 732.17(h)(11)(ii), OSMRE is 

required to get a written concurrence 

from EPA for those provisions of the 

program amendment that relate to air or 

water quality standards issued under 

the authority of the Clean Water Act (33 

U.S.C. 1251 et seq.) or the Clean Air Act 

(42 U.S.C. 7401 et seq.). 

None of the revisions that Ohio 

proposed in the submittal pertain to air 

or water quality standards. Therefore, 

we did not ask EPA to concur on the 

amendment, and as stated above, EPA 

did not provide comment. 

State Historical Preservation Officer 

(SHPO) and the Advisory Council on 

Historic Preservation (ACHP) 

Under 30 CFR 732.17(h)(4), we are 

required to request comments from the 

SHPO and ACHP on amendments that 

may have an effect on historic 

properties. OSMRE requested comments 

on the Ohio amendment 

(Administrative Record Number OH– 

2192–02). We did not receive any 

comments. 

V. OSMRE’s Decision 

Based on the above findings, we 

approve the amendment Ohio sent us on 

November 6, 2013, (Administrative 

Record Number OH–2192–01) with the 

exception of two provisions. We are not 

approving the sentence in section 1513– 


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43982 Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations 

3–07(A), as explained above: ‘‘A 

petition for leave to intervene must be 

filed at least ten days prior to the 

beginning of an evidentiary hearing on 

the merits of an appeal, unless waived 

by the commission for extraordinary 

cause.’’ We are also not approving the 

deletion of 1513–3–07(D)(4), as 

explained above: ‘‘The effect of 

intervention on the agency’s 

implementation of its statutory 

mandate.’’ 

To implement this decision, we are 

amending the Federal regulations at 30 

CFR part 935 that codify decisions 

concerning the Ohio program. In 

accordance with the Administrative 

Procedure Act, this rule will take effect 

30 days after the date of publication. 

Section 503(a) of SMCRA requires that 

the State’s program demonstrate that the 

State has the capability of carrying out 

the provisions of the Act and meeting its 

purposes. SMCRA requires consistency 

of State and Federal standards. 

VI. Procedural Determinations 

Executive Order 12630—Takings 

This rule does not have takings 

implications. This determination is 

based on the analysis performed for the 

counterpart Federal regulations. Other 

changes implemented through this final 

rule notice are administrative in nature 

and have no takings implications. 

Executive Order 12866—Regulatory 

Planning and Review 

Pursuant to Office of Management and 

Budget (OMB) Guidance dated October 

12, 1993, the approval of state program 

amendments is exempted from OMB 

review under Executive Order 12866. 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

reviewed this rule as required by section 

3(a) of Executive Order 12988. The 

Department determined that this 

Federal Register notice meets the 

criteria of Section 3 of Executive Order 

12988, which is intended to ensure that 

the agency review its legislation and 

proposed regulations to eliminate 

drafting errors and ambiguity; that the 

agency write its legislation and 

regulations to minimize litigation; and 

that the agency’s legislation and 

regulations provide a clear legal 

standard for affected conduct rather 

than a general standard, and promote 

simplification and burden reduction. 

Because Section 3 focuses on the quality 

of Federal legislation and regulations, 

the Department limited its review under 

this Executive Order to the quality of 

this Federal Register notice and to 

changes to the Federal regulations. The 

review under this Executive Order did 

not extend to the language of the State 

regulatory program or to the program 

amendment that the State of Ohio 

drafted. 

Executive Order 13132—Federalism 

This rule is not a ‘‘[p]olicy that [has] 

Federalism implications’’ as defined by 

section 1(a) of Executive Order 13132 

because it does not have ‘‘substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Instead, this rule 

approves an amendment to the Ohio 

program submitted and drafted by that 

State. OSMRE reviewed the submission 

with fundamental federalism principles 

in mind as set forth in sections 2 and 

3 of the Executive Order and with the 

principles of cooperative federalism set 

forth in SMCRA. See, e.g., 30 U.S.C. 

1201(f). As such, pursuant to section 

503(a)(1) and (7) (30 U.S.C. 1253(a)(1) 

and (7)), OSMRE reviewed the program 

amendment to ensure that it is ‘‘in 

accordance with’’ the requirements of 

SMCRA is ‘‘consistent with’’ the 

regulations issued by the Secretary 

pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Government 

In accordance with Executive Order 

13175, OSMRE has evaluated the 

potential effects of this rule on Federally 

recognized Indian tribes and has 

determined that the rule does not have 

substantial direct effects on one or more 

Indian tribes, or the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

The basis for this determination is that 

our decision pertains to the Ohio 

regulatory program and does not involve 

a Federal program involving Indian 

lands or Indian tribes in any way. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

Executive Order 13211 of May 18, 

2001, which requires agencies to 

prepare a Statement of Energy Effects for 

a rule that is (1) considered significant 

under Executive Order 12866, and (2) 

likely to have significant adverse effect 

on the supply, distribution, or use of 

energy. Because this rule is exempt from 

review under Executive Order 12866 

and is not expected to have a significant 

adverse effect on the supply, 

distribution, or use of energy, a 

Statement of Energy Effects is not 

required. 

National Environmental Policy Act 

This rule does not require an 

environmental impact statement 

because section 702(d) of SMCRA (30 

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

decisions on proposed State regulatory 

program provisions, including 

amendments thereto, do not constitute 

major Federal actions within the 

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

National Environmental Policy Act (42 

U.S.C. 4332(2)(C)). It is further 

documented in the DOI Departmental 

Manual at 516 DM 13.5 that agency 

decisions on approval of State 

regulatory programs do not constitute 

major Federal actions. 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3507 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). Ohio’s submittal, 

which is the subject of this rule, is based 

upon counterpart Federal regulations for 

which an economic analysis was 

prepared and certification made that 

such regulations would not have a 

significant economic effect upon a 

substantial number of small entities. In 

making the determination as to whether 

this rule would have a significant 

economic impact, the Department relied 

upon data and assumptions for the 

counterpart Federal regulations. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: (a) Does not have an annual 

effect on the economy of $100 million; 

(b) will not cause a major increase in 

costs or prices for consumers, 

individual industries, geographic 

regions, or Federal, State, or local 

government agencies; and (c) does not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. This 

determination is based upon the fact 

that the State submittal, which is the 

subject of this rule, is based upon 


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Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations 43983 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation was not considered a major 

rule. 

Unfunded Mandates 

This rule will not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based upon 

the fact that the State submittal, which 

is the subject of this rule, is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation did not impose an unfunded 

mandate. 

List of Subjects in 30 CFR Part 935 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: August 13, 2018. 

Thomas Shope, 

Regional Director, Appalachian Region. 

For the reasons set out in the 

preamble, 30 CFR part 935 is amended 

as set forth below: 

PART 935—OHIO 

■ 1. The authority citation for part 935 

continues to read as follows: 

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

■ 2. Section 935.12 is added to read as 

follows: 

§ 935.12 State statutory, regulatory, and 

proposed program amendments not 

approved. 

(a) In OAC 1513–3–07(A), we are not 

approving the following sentence: ‘‘A 

petition for leave to intervene must be 

filed at least ten days prior to the 

beginning of an evidentiary hearing on 

the merits of an appeal, unless waived 

by the commission for extraordinary 

cause.’’ 

(b) In OAC 1513–3–07(D) (4), we are 

not approving the deletion of the 

following sentence: ‘‘The effect of 

intervention on the agency’s 

implementation of its statutory 

mandate.’’ 

■ 3. Section 935.15 is amended in the 

table by adding a new entry in 

chronological order by ‘‘Date of final 

publication’’ to read as follows: 

§ 935.15 Approval of Ohio regulatory 

program amendments. 

* * * * * 

Original amendment submission date Date of final publication Citation/description 

*******

November 6, 2013 ................................. August 29, 2018 ..................................... OAC 1513–3–01 through 1513–3–22, except for a portion 

of OAC 1513–3–07(A) and the deletion of OAC 1513–3– 

07(D)(4). 

[FR Doc. 2018–18706 Filed 8–28–18; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2018–0779] 

Drawbridge Operation Regulation; 

Passaic River, Harrison, NJ 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of deviation from 

drawbridge regulation. 

SUMMARY: The Coast Guard has issued a 

temporary deviation from the operating 

schedule that governs the Route 280 

Bridge across the Passaic River, mile 

5.8, at Harrison, New Jersey. The 

deviation is necessary to perform steel 

repairs at the lift span. This deviation 

allows the bridge to remain closed 

during the construction period. 

DATES: This deviation is effective from 

12:01 a.m. on October 1, 2018, until 

11:59 p.m. on December 14, 2018. 

ADDRESSES: The docket for this 

deviation, USCG–2018–0779, is 

available at http://www.regulations.gov. 

Type the docket number in the 

‘‘SEARCH’’ box and click ‘‘SEARCH.’’ 

Click on Open Docket Folder on the line 

associated with this deviation. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

deviation, call or email Judy K. LeungYee, Bridge Management Specialist, 

First District Bridge Branch, U.S. Coast 

Guard; telephone 212–514–4336, email 

Judy.K.Leung-Yee@uscg.mil. 

SUPPLEMENTARY INFORMATION: The owner 

of the bridge, New Jersey Department of 

Transportation, requested a temporary 

deviation in order to perform steel 

repairs at the lift span. 

The Route 280 Bridge across the 

Passaic River, mile 5.8, at Harrison, New 

Jersey is a vertical lift bridge with a 

vertical clearance of 35 feet at mean 

high water and 40 feet at mean low 

water in the closed position. The 

existing drawbridge operating regulation 

is listed at 33 CFR 117.739(h). 

This temporary deviation will allow 

the Route 280 Bridge to remain in the 

closed position from 12:01 a.m. on 

October 1, 2018, to 11:59 p.m. on 

December 14, 2018. The deviation will 

have minimal effect on navigation. The 

waterway is transited by recreational 

and commercial vessels. Coordination 

with waterway users has indicated no 

objection to the closure of the draw. 

Vessels able to pass through the bridge 

in the closed position may do so at any 

time. The bridge will not be able to open 

for emergencies. There is no immediate 

alternate route for vessels to pass. 

The Coast Guard will also inform the 

users of the waterways through our 

Local and Broadcast Notices to Mariners 

of the change in operating schedule for 

the bridge so that vessel operators can 

arrange their transits to minimize any 

impact caused by the temporary 

deviation. 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the effective period of this 

temporary deviation. This deviation 

from the operating regulations is 

authorized under 33 CFR 117.35. 

Dated: August 23, 2018. 

C.J. Bisignano, 

Supervisory Bridge Management Specialist, 

First Coast Guard District. 

[FR Doc. 2018–18638 Filed 8–28–18; 8:45 am] 

BILLING CODE 9110–04–P 


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