[Federal Register Volume 83, Number 168 (Wednesday, August 29, 2018)]
[Rules and Regulations]
[Pages 43977-43983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18706]



[[Page 43977]]

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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.

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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: <a href="/cdn-cgi/l/email-protection#274548504249546748544a554209404851"><span class="__cf_email__" data-cfemail="94f6fbe3f1fae7d4fbe7f9e6f1baf3fbe2">[email protected]</span></a>.

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

[[Page 43978]]

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 non-substantive, 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.

[[Page 43980]]

    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, post-hearing 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

[[Page 43981]]

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-

[[Page 43982]]

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

[[Page 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

0
1. The authority citation for part 935 continues to read as follows:

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


0
2. Section 935.12 is added to read as follows:


Sec.  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.''

0
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:


Sec.  935.15   Approval of Ohio regulatory program amendments.

* * * * *

------------------------------------------------------------------------
  Original amendment submission      Date of final         Citation/
              date                    publication         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


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