Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 8185 

provide rules relating to a new 

provision of the Code that was enacted 

as part of EJMAA (Pub. L. 111–226, 124 

Stat. 2389 (2010)) which addresses 

situations in which foreign income taxes 

have been separated from the related 

income. The text of those regulations 

also serves as the text of these proposed 

regulations. The preamble to the 

temporary regulations explains the 

temporary regulations and these 

proposed regulations. The regulations 

affect taxpayers claiming foreign tax 

credits. 

Special Analyses 

It has been determined that this notice 

of proposed rulemaking is not a 

significant regulatory action as defined 

in Executive Order 12866. Therefore, a 

regulatory assessment is not required. It 

has also been determined that section 

553(b) of the Administrative Procedure 

Act (5 U.S.C. chapter 5) does not apply 

to these regulations, and because the 

regulations do not impose a collection 

of information on small entities, the 

Regulatory Flexibility Act (5 U.S.C. 

chapter 6) does not apply. Pursuant to 

section 7805(f), these regulations have 

been submitted to the Chief Counsel for 

Advocacy of the Small Business 

Administration for comment on its 

impact on small business. 

Comments and Requests for Public 

Hearing 

Before these proposed regulations are 

adopted as final regulations, 

consideration will be given to any 

comments that are submitted timely to 

the IRS as prescribed in this preamble 

under ADDRESSES. The Treasury 

Department and the IRS request 

comments on all aspects of the proposed 

rules. All comments will be available at 

www.regulations.gov or upon request. A 

public hearing will be scheduled if 

requested in writing by any person that 

timely submits comments. If a public 

hearing is scheduled, notice of the date, 

time, and place for the public hearing 

will be published in the Federal 

Register. 

Drafting Information 

The principal author of these 

regulations is Suzanne M. Walsh of the 

Office of Associate Chief Counsel 

(International). However, other 

personnel from the IRS and the Treasury 

Department participated in their 

development. 

List of Subjects in 26 CFR Part 1 

Income taxes, Reporting and 

recordkeeping requirements. 

Proposed Amendments to the 

Regulations 

Accordingly, 26 CFR part 1 is 

proposed to be amended as follows: 

PART 1—INCOME TAXES 

Paragraph 1. The authority citation 

for part 1 continues to read in part as 

follows: 

Authority: 26 U.S.C. 7805 * * * 

Par. 2. Section 1.704–1 is amended as 

follows: 

1. Paragraph (b)(1)(ii)(b)(3) is added. 

2. Paragraph (b)(4)(viii)(d)(3) and 

paragraph (b)(5) Example 24 are revised. 

The addition and revisions read as 

follows: 

§ 1.704–1 Partner’s distributive share. 

* * * * * 

(b) * * * 

(1) * * * 

(ii) * * * 

(b) * * * 

(3) [The text of the proposed 

amendments to § 1.704–1(b)(1)(ii)(b)(3) 

is the same as the text of § 1.704– 

1T(b)(1)(ii)(b)(3) published elsewhere in 

this issue of the Federal Register.] 

* * * * * 

(4) * * * 

(viii) * * * 

(d) * * * 

(3) [The text of the proposed 

amendments to § 1.704– 

1(b)(4)(viii)(d)(3) is the same as the text 

of § 1.704–1T(b)(4)(viii)(d)(3) published 

elsewhere in this issue of the Federal 

Register.] 

* * * * * 

(5) * * * 

Example 24. [The text of the proposed 

amendments to § 1.704–1(b)(5) Example 

24 is the same as the text of §§ 1.704– 

1T(b)(5) Example 24 published 

elsewhere in this issue of the Federal 

Register.] 

* * * * * 

Par. 3. Section 1.909–0 is added to 

read as follows: 

§ 1.909–0 Outline of regulation provisions 

for section 909. 

[The text of proposed § 1.909–0 is the 

same as the text of § 1.909–0T published 

elsewhere in this issue of the Federal 

Register.] 

Par. 4. Sections 1.909–1 through 

1.909–6 are added to read as follows: 

§ 1.909–1 Definitions and special rules. 

[The text of proposed § 1.909–1 is the 

same as the text of § 1.909–1T(a) 

through (e) published elsewhere in this 

issue of the Federal Register.] 

§ 1.909–2 Splitter arrangements. 

[The text of proposed § 1.909–2 is the 

same as the text of § 1.909–2T(a) 

through (c) published elsewhere in this 

issue of the Federal Register.] 

§ 1.909–3 Rules regarding related income 

and split taxes. 

[The text of proposed § 1.909–3 is the 

same as the text of § 1.909–3T(a) 

through (c) published elsewhere in this 

issue of the Federal Register.] 

§ 1.909–4 Coordination rules. 

[The text of proposed § 1.909–4 is the 

same as the text of § 1.909–4T(a) 

through (b) published elsewhere in this 

issue of the Federal Register.] 

§ 1.909–5 2011 and 2012 Splitter 

arrangements. 

[The text of proposed § 1.909–5 is the 

same as the text of § 1.909–5T(a) 

through (c) published elsewhere in this 

issue of the Federal Register.] 

§ 1.909–6 Pre-2011 foreign tax credit 

splitting events. 

[The text of proposed § 1.909–6 is the 

same as the text of § 1.909–6T(a) 

through (h) published elsewhere in this 

issue of the Federal Register.] 

Steven T. Miller, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. 2012–3350 Filed 2–9–12; 4:15 pm] 

BILLING CODE 4830–01–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 935 

[SATS No. OH–252–FOR; Docket ID OSM 

2011–0003] 

Ohio Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior. 

ACTION: Proposed rule; reopening of the 

public comment period and opportunity 

for public hearing on the proposed 

amendment. 

SUMMARY: We are announcing receipt of 

a proposed amendment to the Ohio 

regulatory program (the ‘‘Ohio 

program’’) under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act) and reopening the 

public comment period. The comment 

period is being reopened to incorporate 

changes that Ohio made to its initial 

amendment submission of 2007 

regarding Ohio’s alternative bonding 

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8186 Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 

system. We did not make a decision on 

that submission since Ohio planned to 

submit additional revisions in response 

to OSM’s review of the submission. The 

comment period is being reopened to 

incorporate recent amendment 

submissions, which consist of changes 

in response to OSM’s concerns and 

other changes that Ohio made at its own 

initiative. Taken together, the revised 

amendment includes legislative and 

regulatory actions regarding subjects 

such as bond program changes, AML 

provisions, program funding, permitting 

standards, valid existing rights, remining, blasting, and topsoil handling. 

It also includes two actuarial reports on 

Ohio’s bonding program and letters to 

Ohio’s Governor from the Reclamation 

Forfeiture Fund Advisory Board of Ohio 

with recommendations regarding these 

reports. 

This document gives the times and 

locations that the Ohio submittal is 

available for your inspection, the 

comment period during which you may 

submit written comments, and the 

procedures that we will follow for the 

public hearing, if one is requested. 

DATES: We will accept written 

comments until 4 p.m., local time 

March 15, 2012. If requested, we will 

hold a public hearing on March 12, 

2012. We will accept requests to speak 

until 4 p.m., local time on February 29, 

2012. 

ADDRESSES: You may submit comments, 

identified by ‘‘OH–252–FOR; Docket ID: 

OSM–2011–0003 by either of the 

following two methods: 

Federal eRulemaking Portal: 

www.regulations.gov. The proposed rule 

has been assigned Docket ID: OSM– 

2011–0003. If you would like to submit 

comments through the Federal 

eRulemaking Portal, go to 

www.regulations.gov and follow the 

instructions. 

Mail/Hand Delivery/Courier: Mr. Ben 

Owens, Acting Chief, Pittsburgh Field 

Division, Office of Surface Mining 

Reclamation and Enforcement, 4605 

Morse Rd., Room 102, Columbus, Ohio 

43230. 

Instructions: For detailed instructions 

on submitting comments and additional 

information on the rulemaking process, 

see the ‘‘Public Comment Procedures’’ 

heading of the SUPPLEMENTARY

INFORMATION section of this document. 

Docket: In addition to obtaining a 

copy of the submission letter at 

www.regulations.gov, information may 

also be obtained at the addresses listed 

below during normal business hours, 

Monday through Friday, excluding 

holidays. You may receive one free copy 

of the amendment by contacting OSM’s 

Pittsburgh Field Division Office. 

Ben Owens, Acting Chief, Pittsburgh 

Field Division, Office of Surface 

Mining Reclamation and 

Enforcement, 4605 Morse Rd., Room 

102, Columbus, OH 43230, 

Telephone: (614) 416–2238, Email: 

bowens@osmre.gov. 

Lanny Erdos, Chief, Division of Mineral 

Resources Management, Ohio 

Department of Natural Resources, 

2045 Morse Rd., Building H–2, 

Columbus, OH 43229, Telephone: 

(614) 265–6888; Email: 

Lanny.Erdos@dnr.state.oh.us. 

FOR FURTHER INFORMATION CONTACT: Ben 

Owens, Telephone: (614) 416–2238. 

Email: bowens@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Ohio Program 

II. Description of the Amendment 

III. Public Comment Procedures 

IV. Procedural Determinations 

I. Background on the Ohio Program 

Section 503(a) of the Act permits a 

state to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its program 

includes, among other things, ‘‘a state 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of this Act * * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

approved the Ohio program on August 

16, 1982. 

You can find background information 

on the Ohio program, including the 

Secretary’s findings, the disposition of 

comments, and conditions of approval 

of the Ohio program in the August 16, 

1982, Federal Register (41 FR 34688). 

You can also find later actions 

concerning the Ohio program and 

program amendments at 30 CFR 935.11, 

935.12, 935.15, and 935.16. 

II. Description of the Amendment 

Initial Submission: By letter dated 

March 6, 2007, Ohio sent us an 

amendment to its program 

(Administrative Record Number OH– 

2185–28), known by Ohio as Program 

Amendment No. 82. The amendment 

was intended primarily to satisfy a 

program condition codified in the 

Federal regulations at 30 CFR 935.11(h). 

It was in response to our letter of May 

4, 2005, issued under provisions of 30 

CFR 733.12(b). The program condition 

and the 733 letter provided that Ohio 

submit a program amendment that 

demonstrates how the alternative 

bonding system will assure timely 

reclamation at the site of all operations 

for which bond has been forfeited. We 

announced the receipt of this 

amendment in the April 30, 2007, 

Federal Register (72 FR 21176). 

The submission was a result of the 

adoption of Ohio House Bill 443 in 

2007, which was intended to address 

many of the issues of concern to OSM 

relative to Ohio’s alternative bonding 

system. The submission involved 

legislative action resulting in changes to 

the Ohio Revised Code (ORC) regarding 

the state’s alternative bonding system, 

funding for its regulatory and 

abandoned mine land programs, 

permitting procedures for determining 

the potential for acid mine drainage, 

and rulemaking if Ohio becomes 

covered by a state programmatic general 

permit issued by the U.S. Army Corps 

of Engineers for the discharge of 

dredged or fill material into waters of 

the United States by coal mining 

operations. The submission included: 

Ohio House Bill 443 as signed into law; 

a Summary of Coal Mining Provisions of 

House Bill 443 prepared by the Ohio 

Division of Mineral Resources 

Management (DMRM); Program 

Amendment No. 82 request; revisions to 

the Ohio Bonding Program; Explanation 

of Proposed Bond Pool Revisions; and 

an Analysis of the impacts of House Bill 

443 upon DMRM revenues. 

OSM conducted a review of the 

submission and documented its findings 

in a letter to Ohio dated July 26, 2007 

(Administrative Record No. OH–2185– 

36). In that letter, OSM identified 24 

issues that required additional 

clarification or a description of 

necessary rulemaking before OSM could 

provide the analysis necessary to make 

a decision on the adequacy of the 

amendment provisions in meeting 

SMCRA requirements. These issues 

would require additional legislative 

changes, rulemaking, procedure 

development, and completion of an 

actuarial study, followed by a revised 

program amendment. For these reasons, 

OSM deferred deciding on the 

submission until Ohio submitted 

additional information. The following 

actions occurred subsequent to the 

initial submission: 

Establishment of Workgroups: 

Ohio acknowledged that significant 

amendments to the Ohio Administrative 

Code (OAC) would be needed to ensure 

that the final program amendment, in 

whole, was consistent with the relevant 

Federal regulations. Ohio chartered 

several workgroups made up of internal 

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Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 8187 

and external stakeholders to develop 

final procedures that would be issued as 

a basis for writing new and revising 

existing regulations under the Ohio 

Administrative Code (OAC) to 

implement the provisions of HB 443. 

The workgroups’ efforts resulted in 

development of procedures affecting 

such matters as acid-base accounting, 

reclamation cost estimates, performance 

security release/approval, tax credits, 

and others as described in some of the 

following paragraphs. 

OSM/State Communications: 

OSM met with Ohio on August 22, 

2007 (Administrative Record No. OH– 

2185–37), and on August 27, 2007 

(Administrative Record No. OH–2185– 

38), to discuss the issues and Ohio’s 

plans to address them. Ohio responded 

to OSM’s July 26, 2007, letter on 

October 15, 2007 (Administrative 

Record No. OH–2185–39) requesting an 

extension of time until January 18, 2008, 

to respond to OSM’s issues. OSM 

responded on November 6, 2007 

(Administrative Record No. OH–2185– 

40), granting Ohio’s request for an 

extension. Ohio provided a detailed 

response to OSM’s issues on January 18, 

2008 (Administrative Record No. OH– 

2185–41). Their response included 

Ohio’s expectation that discussion with 

the mining industry regarding needed 

statutory changes would continue and 

regulations would be adopted by 

December 2009. By letter dated July 3, 

2008 (Administrative Record No. OH– 

2185–42), Ohio responded to concerns 

that OSM identified regarding changes 

to program funding and described a new 

revenue source. By letter dated January 

9, 2009, OSM responded 

(Administrative Record No. OH–2185– 

44) to Ohio’s letter of January 18, 2008. 

In this letter OSM reiterated some of the 

major concerns with the amendment 

and acknowledged Ohio’s letter of July 

3, 2008, regarding program funding 

concerns. OSM met with Ohio on 

January 29, 2009 (Administrative 

Record No. OH–2185–45), to discuss 

OSM’s January 9, 2009, letter and Ohio’s 

progress with additional program 

changes in response to OSM’s issues. 

Ohio responded to OSM’s letter of 

January 9, 2009, by letter dated April 17, 

2009 (Administrative Record No. OH– 

2185–46), that described statutory 

changes that had occurred or would 

occur to address the major concerns 

OSM identified. 

Ohio provided OSM with a copy of a 

letter from Pinnacle Actuarial Resources 

to the Chair of the Ohio Reclamation 

Forfeiture Advisory Board dated June 

22, 2009, that included a report entitled 

‘‘Analysis of the Ohio Reclamation 

Forfeiture Fund.’’ This actuarial 

analysis provided information and 

recommendations regarding the fiscal 

condition of Ohio’s performance 

security pool (Administrative Record 

No. OH–2185–47). The Board forwarded 

this report, along with 

recommendations resulting from the 

report, to the Governor of Ohio by letter 

dated June 29, 2009 (Administrative 

Record No. OH–2185–48). 

On July 28, 2009, Ohio provided OSM 

with an update (Administrative Record 

No. OH–2185–49) to Ohio’s Program 

Amendment No. 82, which was 

intended to address several of the issues 

OSM had identified with Ohio’s original 

program amendment submittal. This 

document included three legislative 

actions (portions of House Bill 119, 

Senate Bill 73, and Senate Bill 386); 

changes to OAC effective April 30, 2009; 

an opinion from DMRM’s Chief legal 

counsel regarding the cap on liability of 

Ohio’s alternative bonding system, and 

the 2009 actuarial report. Since 

additional changes were forthcoming, 

OSM did not process this update as a 

formal program amendment. 

On July 27, 2010, OSM sent a letter 

to Ohio (Administrative Record No. 

OH–2185–52), providing the issues that 

OSM believed to remain unresolved and 

asked for an update on the status of 

addressing the issues since Ohio’s 

projected completion date of December 

2009 had passed. Ohio replied on 

October 18, 2010 (Administrative 

Record No. OH–2185–53), providing a 

status report on negotiations with the 

Ohio Coal Association regarding 

additional legislative issues, the status 

of a second actuarial analysis, and a 

number of rules that had been adopted. 

April Submission: By letter dated 

April 1, 2011, Ohio sent us an 

amendment to its program (a 

continuation of the original 2007 

submission), Administrative Record No. 

OH–2185–54, under SMCRA (30 U.S.C. 

1201 et seq.). Ohio changed its program 

by adding and changing statutory 

provisions (Ohio Revised Code—ORC) 

and rules (Ohio Administrative Code— 

OAC) regarding performance bond on 

coal mining operations in response to 

OSM’s concerns and in order to codify 

regulatory language resulting from 

House Bill 443 (which had been 

announced previously). In addition to 

these changes, Ohio subsequently added 

or changed statutory provisions and 

regulations regarding topics such as 

valid existing rights, re-mining, 

abandoned mine lands, blasting, and 

topsoil handling, among others. 

The submission includes statutory 

changes to Chapters 1513 and 5749 of 

the ORC that resulted from four 

different legislative actions (House Bill 

119, Senate Bill 73, Senate Bill 181, and 

Senate Bill 386); regulatory changes to 

Chapter 1501 of the OAC; a 2009 

actuarial report analysis of Ohio’s 

reclamation forfeiture fund; and 

procedure directives. In addition to the 

documents mentioned above, the state 

has included procedure directives for 

the purposes of clarity and support and 

they are not considered part of this 

amendment. 

July Submission: By letter dated July 

26, 2011 (Administrative Record No. 

OH–2185–61), Ohio provided additional 

statutory changes adopted under House 

Bill 163 on June 30, 2011; a recently 

completed 2011 actuarial report on the 

reclamation forfeiture fund; and a letter 

to the Governor from the Reclamation 

Forfeiture Fund Advisory Board 

regarding the actuarial report. 

We are combining the April 1, 2011, 

and the July 26, 2011, submissions with 

the original submission and reopening 

the comment period. When taken 

together, the March 8, 2007, the April 1, 

2011, and the July 26, 2011, 

submissions include changes to the 

following provisions of the ORC and 

OAC. 

Legislative Actions: 

As mentioned above, we announced 

the provisions of the April 6, 2007, 

submission that included House Bill 

443 in the April 30, 2007, Federal 

Register (72 FR 21176). Since that 

publication, five additional legislative 

actions have occurred: House Bill 119 

dated September 28, 2007; Senate Bill 

386 dated April 7, 2009; Senate Bill 73 

dated June 15, 2009; Senate Bill 181 

dated September 13, 2010; and House 

Bill 163 dated June 30, 2011. As 

legislative activity progressed 

throughout these years, many of the 

provisions of the more recent bills 

modified previously enacted bills. We 

did not announce these legislative 

actions as they occurred, but rather 

aggregately included them with this 

notice. To simplify our description of 

the outcome of the legislative activity 

that occurred subsequent to House Bill 

443, we have summarized pertinent 

changes based on the ORC language that 

currently exists. While we had already 

announced the submission involving 

ORC changes resulting from the enacted 

provisions of House Bill 443, we have 

chosen to include them here to provide 

a comprehensive summary of all of the 

changes requested for approval. The 

summary of the changes follows: 

1513.01: Coal Surface Mining 

Definitions (Revised by House Bill 443 

and Senate Bill 73) 

This section was revised to define the 

new term ‘‘performance security’’ and to 

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8188 Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 

clarify that the state is the primary 

beneficiary of any trust fund. 

1513.02: Chief of Division of Mineral 

Resources Management—Powers and 

Duties (Revised by House Bill 443) 

With regard to the power and duties 

of the Chief concerning violations and 

penalty assessments, this section was 

revised to direct that all funds collected 

from civil penalties be deposited in the 

reclamation forfeiture fund, instead of 

the coal mining administration and 

reclamation reserve fund. With regard to 

the power and duties of the Chief, this 

section was revised to add the provision 

that if the state becomes covered by a 

state programmatic general permit 

issued by the U.S. Army Corps of 

Engineers for the discharge of dredged 

or fill material into the waters of the 

U.S. by operations that conduct surface 

and underground coal mining and 

reclamation operations and the 

restoration of abandoned mine lands, 

the Chief may establish programs and 

adopt rules and procedures designed to 

implement the terms, limitations, and 

conditions of the permit. 

1513.07: Coal Mining and Reclamation 

Permit—Application or Renewal— 

Reclamation Plan (Revised by House 

Bill 443, Senate Bill 386, Senate Bill 73, 

and House Bill 163) 

With regard to the permit application, 

this section was revised to delete the 

permit application and renewal fee. The 

loss of program operation funding 

previously generated by the fees was 

addressed through changes to the excise 

tax on coal production. With regard to 

the results of test borings or core 

samplings from the application area, the 

section was revised to add that if test 

borings or core samplings from the 

application area indicate the existence 

of potentially acid forming or toxic 

forming quantities of sulfur in the coal 

or overburden to be disturbed by 

mining, the application also shall 

include a statement of the acid 

generating potential and the acid 

neutralizing potential of the rock strata 

to be disturbed. With regard to the 

reclamation plan, this section was 

revised to clarify that it is the 

applicant’s responsibility to provide 

adequate information in the application 

to enable the Chief to determine the 

estimated cost to reclaim the site in the 

event of forfeiture and eliminate the 

requirement that the permittee provide 

the estimated cost of reclamation per 

acre in a permit application. With 

regard to post-application processing, 

this section was revised to establish that 

the state must make a decision on 

completeness on coal mining permit 

applications and notify the applicant of 

a decision within 14 days of 

submission. This section was also 

revised to add a permit provision that 

addresses the situation involving a 

conflict of results between various 

methods of calculating potential acidity 

and neutralization potential. The change 

is for purposes of assessing the potential 

for acid mine drainage to occur at a 

mine site. It requires that the permit 

include provisions for monitoring and 

recordkeeping to identify the creation of 

unanticipated acid water at the mine 

site. If the monitoring detects the 

creation of acid water at the site, the 

permit shall impose additional 

requirements regarding mining practices 

and site reclamation to prevent the 

discharge of acid mine drainage from 

the mine site. With regard to right-ofentry documents, this section was 

revised to provide that right-of-entry 

documents must be provided in cases 

where the private mineral estate has 

been severed from the private surface 

estate only in cases where surface 

disturbance will result from the 

extraction of coal by the applicant’s 

proposed strip mining method. 

1513.073: Designating Areas as 

Unsuitable for Coal Mining Operations 

(Revised by House Bill 163) 

With regard to the designation 

criteria, this section was revised to 

clarify that prohibitive distances for 

mining close to public roads, occupied 

dwellings, public buildings, schools, 

churches, community or institutional 

buildings, public parks, and cemeteries 

are measured horizontally. 

1513.075: Potential Acidity and 

Neutralization of Disturbed Strata 

(Created by House Bill 443 and Revised 

by House Bill 163) 

This is a new section that defines 

certain terms relative to potential 

acidity and neutralization potential of 

strata overlying the coal to be mined. 

The provision also provides for 

calculation of a proposed mining 

operation’s potential to create acid or 

toxic drainage. The section provides 

specific criteria and the conditions 

under which proposed mining areas not 

meeting certain numeric criteria ‘‘may’’ 

not be considered as potential acid/toxic 

producers. 

1513.076: Agency Coordination and 

Cooperation Respecting Permits 

(Created by Senate Bill 386) 

This is a new section that requires 

coordination, cooperation, and 

communication between the Ohio 

Department of Natural Resources and 

the Ohio Environmental Protection 

Agency regarding processing of coal 

mining permit applications. It requires 

establishment of a joint-agency task 

force to ensure that procedures are 

established and implemented. 

1513.08: Filing Performance Bond or 

Deposit of Cash or Securities (Revised 

by House Bill 443, House Bill 119, and 

Senate Bill 73) 

With regard to an applicant’s 

obligations after a coal mining and 

reclamation permit application has been 

approved, this section was revised to 

provide that the applicant shall file a 

performance security that is payable to 

the state and conditioned on the faithful 

performance of the requirements and 

rules and conditions of the permit. The 

section had previously provided that 

after the permit application was 

approved and before the permit was 

issued, the applicant must file such a 

security. 

With regard to estimated cost of 

reclamation for performance security 

calculations, changes require the state to 

provide: (1) Reclamation cost estimates 

on all permits according to the basic 

criteria provided followed by a written 

notice of the estimate to the applicant; 

and (2) an option for some applicants/ 

permittees to provide: (a) performance 

security in the full amount of the 

estimated cost to reclaim the site; or (b) 

performance security of $2,500 per acre 

with reliance on the reclamation 

forfeiture fund by paying an excise tax 

on coal production. With regard to the 

first option, the section was revised to 

establish that the amount of 

performance security will be based on 

the state’s estimated cost to reclaim the 

site. With regard to the second option, 

this section was revised to: define the 

terms ‘‘affiliate of the applicant’’ and 

‘‘owner and controller of the applicant;’’ 

clarify that the applicant includes the 

owner or controller and/or any affiliate 

of the applicant; clarify eligibility for 

applicants to participate in the 

performance security pool; establish 

that if forfeiture occurs, the difference 

between the amount of performance 

security provided by the permittee and 

the estimated cost to reclaim the site 

will be provided from the reclamation 

forfeiture fund; and, establish the 

methods of providing performance 

security for permits held prior to the 

effective date of House Bill 443. 

With regard to the permittee’s liability 

under the performance security, this 

section was revised to add that a 

permittee’s liability under the 

performance security is limited to the 

obligation established under the permit. 

That includes completion of the 

reclamation plan to return the land to a 

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Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 8189 

condition capable of supporting the 

postmining land use that was approved 

in the permit. 

With regard to the estimated cost to 

reclaim, this section was changed to 

require the state to adjust the estimate 

under certain conditions, provide notice 

to the permittee and other interested 

parties, and provide an opportunity for 

an informal conference regarding the 

adjustment. Changes also provide that 

the permittee may request a reduction in 

the amount of performance security. 

The state will make a determination on 

such requests based on the 

documentation provided and other 

information and will notify the 

permittee of the findings. 

With regard to performance security, 

this section was revised to provide that, 

upon approval by the Chief, 

performance security may be held in 

trust, provided that the state is the 

primary beneficiary of the trust, and the 

custodian of the performance security 

held in trust is a bank, trust company, 

or other financial institution that is 

licensed and operating in the state. With 

regard to surety insolvency, this section 

was revised to add provisions that 

require the operator to submit a plan for 

replacement of performance security if a 

surety, bank, savings and loan 

association, trust company, or other 

financial institution that holds the 

performance security becomes 

insolvent. 

With regard to the permittee’s 

responsibility for addressing subsidence 

damage, this section was revised to 

clarify that liability insurance may be 

used in lieu of performance security for 

subsidence damage under the full-cost 

performance security option. It also 

specifies that performance security must 

be adjusted to cover the cost of 

subsidence repair or water supply 

replacement if repairs/replacement/ 

compensation does not occur within 90 

days, with allowance for more time, up 

to one year, if the permittee shows that 

subsidence is not yet completed. 

The section regarding the amount of 

security was revised to add the 

provision that, if the performance 

security provided exceeds the estimated 

cost of reclamation, the Chief may 

authorize the amount of security that 

exceeds the estimated cost of 

reclamation, together with any interest 

or other earnings on the performance 

security, to be paid to the permittee. 

1513.081: Priority Lien Where Operator 

Becomes Insolvent (Created by House 

Bill 443 and Revised by House Bill 163) 

This is a new section that provides 

the lien provisions and conditions when 

an operator becomes insolvent. It 

includes a provision that the state shall 

have a priority lien superior to all 

interested creditors against the assets of 

that operator for the amount of any 

reclamation that is required, including 

the cost of long-term water treatment 

and replacement of alternative water 

supplies, as a result of the operator’s 

mining activities. This section describes 

the procedures the Chief will use in 

such cases. It also describes the 

conditions under which the Chief shall 

issue a certificate of release, modify the 

amount of the lien, and authorize a 

closing agent to hold a certificate of 

release in escrow for a period not to 

exceed 180 days for the purpose of 

facilitating the transfer of unreclaimed 

mine land. This section also adds the 

provision that all money from the 

collection of liens shall be deposited in 

the state treasury to the credit of the 

reclamation forfeiture fund. 

1513.10: Refund of Permit Fees 

(Repealed by House Bill 443) 

This section was repealed. It provided 

conditions in which the operator would 

be entitled to a permit fee refund and 

described the manner in which the 

reclamation fee fund and coal mining 

administration and reclamation reserve 

fund were used and maintained for such 

use. 

1513.13: Public Adjudicatory Hearings 

(Revised by House Bill 443) 

With regard to appeals made to the 

reclamation commission, this section 

was revised to clarify that only the 

petitioning party may be awarded costs 

and expenses, including attorney’s fees 

that were necessary and reasonably 

incurred for, or in connection with 

participating in the proceeding before 

the commission. 

1513.16: Performance Standards 

(Revised by House Bill 443 and House 

Bill 163) 

With regard to general performance 

standards that apply to all coal mining 

and reclamation operations and 

performance security, this section was 

revised to provide that alternative 

financial security is required when the 

Chief determines that a permittee is 

responsible for mine drainage that 

requires water treatment after 

reclamation is completed under the 

terms of the permit or when the 

permittee must provide an alternative 

water supply after reclamation is 

completed. The revision also provides 

the amount and form of the security. It 

also provides permittees under 

performance security with reliance on 

the reclamation forfeiture fund with the 

option of funding an alternative 

financial security over time, up to five 

years, with reliance for the balance on 

the reclamation forfeiture fund until the 

alternative financial security is fully 

funded. Permittees taking this option 

must pay the state a fee of 7.5 percent 

of the average balance of the alternative 

financial security that is being provided 

by reliance on the reclamation forfeiture 

fund. The fee will be credited to the 

fund. In addition, the revision provides 

that rules must be developed to address 

how contracts/trusts/annuities for water 

treatment will be developed. With 

regard to final release of the 

performance security, this section was 

revised to add that the final release of 

the performance security terminates the 

jurisdiction of the Chief over the 

reclaimed site of a surface coal mining 

and reclamation operation or applicable 

portion of an operation. It provides the 

conditions under which the Chief may 

reassert jurisdiction over such a site and 

the appeal procedures regarding such a 

determination. 

1513.171: Tax Credit for Reclamation 

Outside Permit Area (Created by House 

Bill 443) 

This is a new section that provides 

the procedures for claiming a credit and 

the authority for approving and 

determining the amount of such a 

credit. It provides that rules shall be 

adopted to establish procedures for 

determining the amount; when the chief 

may obtain consent of the owners of 

land or water resources to allow 

reclamation work; and delivery of notice 

to the owners of land or water resources 

on which the reclamation work is to be 

performed. 

1513.18: Reclamation Forfeiture Fund 

(Revised by House Bill 443, House Bill 

119, Senate Bill 73, and House Bill 163) 

With regard to the fund, this section 

was revised to delete a phrase 

describing the reclamation forfeiture 

fund and its contents. The fund was 

comprised of any monies transferred to 

it from the unreclaimed lands fund and 

monies collected and credited to it. The 

section now provides that the fund is 

comprised of all money from the 

collection of liens, any monies 

transferred to it from the coal mining 

and reclamation reserve fund, fines 

collected, and monies collected and 

credited to it. Since the fund is no 

longer responsible for non-coal sites, the 

Chief’s priority for designating funding 

was eliminated. Thus, this section was 

further revised to delete the requirement 

that the Chief’s priority for management 

of the fund, including the selection of 

projects and transfer of monies, shall be 

to ensure that sufficient funds are 

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available for the reclamation of areas 

affected by mining under a coal mining 

and reclamation permit. It now provides 

that the Chief may expend monies from 

the fund to pay necessary administrative 

costs of the reclamation forfeiture fund 

advisory board. 

This section was revised to authorize 

the Chief to enter into a contract with 

a contractor hired by the trust 

administrator to provide long-term 

water treatment or a long-term 

alternative water supply on areas on 

which a permittee defaulted or has not 

fully funded an alternative financial 

security without advertising for bids. It 

clarifies that the money from forfeited 

performance security credited to the 

reclamation forfeiture fund will pay the 

cost of completing reclamation to the 

standards established by the law and 

rules. It also authorizes use of any 

alternative financial security in addition 

to forfeited performance security to 

complete the reclamation of sites. It 

clarifies that for permits covered by 

performance security with reliance on 

the reclamation forfeiture fund, if the 

forfeited performance security and any 

alternative financial security are not 

sufficient to complete reclamation to the 

standards of the law and rule, the Chief 

may expend any other monies 

transferred to the fund to complete the 

reclamation. It also provides an 

exception to the prohibition that the 

reclamation forfeiture fund cannot be 

used for water treatment. The exception 

allows use of money from the 

reclamation forfeiture fund for 

reclamation of land and water resources 

affected by mine drainage that requires 

treatment or for an alternative water 

supply in an amount not to exceed the 

balance of the alternative financial 

security provided by the reclamation 

forfeiture fund. In addition, money from 

the reclamation forfeiture fund shall not 

supplement the performance security of 

a permittee that has provided 

performance security without reliance 

on the reclamation forfeiture fund. This 

section was also revised to add that all 

investment earnings of the fund shall be 

credited to the fund and shall be used 

only for the reclamation of land for 

which the performance security was 

provided. 

1513.181: Coal Mining Administration 

and Reclamation Reserve Fund (Revised 

by House Bill 443) 

With regard to the fund, this section 

was revised to remove the provision that 

fines collected shall be paid into the 

coal mining administration and 

reclamation reserve fund. The section 

was also revised to provide that if the 

Director of Natural Resources 

determines it necessary, he/she may 

request the controlling board to transfer 

an amount of money from the coal 

mining administration and reclamation 

reserve fund to the unreclaimed lands 

fund. 

1513.182: Reclamation Forfeiture Fund 

Advisory Board (Created by House Bill 

443) 

This is a new section that provides for 

the creation of the reclamation forfeiture 

fund advisory board. It includes 

provisions for the composition of the 

board, term limits for board members, 

compensation of board members, 

election of officers, meeting frequency, 

establishment of board procedures, and 

responsibilities of the board. The 

responsibilities of the board include: 

reviewing deposits into and 

expenditures from the reclamation 

forfeiture fund; procuring periodic 

actuarial studies; adopting rules to 

adjust the rate of tax levied; providing 

a forum for discussion of issues related 

to the reclamation forfeiture fund and 

the performance security that is 

required; submitting a biennial report to 

the Governor that describes the financial 

status of the reclamation forfeiture fund 

and the adequacy of the amount of 

money in the fund to accomplish the 

purposes of the fund; and, 

recommending to the Governor, if 

necessary, alternative methods of 

providing money for or using money in 

the reclamation forfeiture fund. The 

board will also evaluate any rules, 

procedures, and methods for estimating 

the cost of reclamation for purposes of 

determining the amount of performance 

security that is required; the collection 

of forfeited performance security; 

payments to the reclamation forfeiture 

fund; reclamation of sites for which 

operators have forfeited the performance 

security; and the compliance of 

operators with their reclamation plans. 

1513.29: Council on Unreclaimed Strip 

Mined Lands (Revised by House Bill 

443) 

With regard to meeting frequency, this 

section has been revised to change the 

requirement to hold at least four 

quarterly meetings each year to 

providing that meetings would occur as 

necessary. 

1513.30: Unreclaimed Lands Fund— 

Selection of Project Areas (Revised by 

House Bill 443) 

The section regarding the Chief’s 

recommendations concerning project 

selection and priorities to the council on 

unreclaimed strip mined lands has been 

revised. The revision removes the 

requirement that the Chief shall mail a 

notice at least two weeks before any 

meeting of the council during which the 

Chief will submit a project proposal, a 

project area will be selected, or the 

boundaries of a project area will be 

determined, to the board of county 

commissioners and the board of 

township trustees of the township in 

which the proposed project lies, and the 

Chief executive and the legislative 

authority of each municipal corporation 

within the proposed area. The Chief is 

no longer required to give reasonable 

notice to the news media in the county 

where the proposed project lies. This 

section has also been revised to remove 

the provision that the controlling board 

may transfer excess funds from the oil 

and gas well fund after recommendation 

by the council to meet deficiencies in 

the unreclaimed lands fund. Also, if the 

director of natural resources determines 

it necessary, he/she may request the 

controlling board to transfer an amount 

of money from the fund to the coal 

mining administration and reclamation 

reserve fund. 

1513.371: Abandoned Mine 

Reclamation Fund (Created by House 

Bill 443, Revised by House Bill 163) 

This is a new section that provides for 

the creation and management of an 

abandoned mine land set-aside fund. 

This section was later revised to delete 

research and demonstration projects 

from the list of eligible expenditures 

from the AML set-aside fund. 

1513.372: Immunity From Liability 

(Created by Senate Bill 181) 

This is a new section establishing the 

conditions under which an eligible 

landowner or nonprofit organization is 

immune from liability for injuries or 

damages that occur during an 

abandoned mine land or acid-mine 

drainage reclamation project. It also 

establishes procedures for notifying the 

division of known, latent, dangerous 

conditions located at the reclamation 

project work area and limitations on 

immunity. 

5749.02: Excise Tax on Severance of 

Natural Resources (Revised by House 

Bill 443, House Bill 119, and Senate Bill 

73) 

With regard to the excise tax, this 

section was revised to increase the coal 

excise tax from 7 cents to 10 cents per 

ton for providing revenue to administer 

the state’s coal mining and reclamation 

regulatory program. It also provides that 

if performance security is provided by 

way of the bond pool and $2,500 flat 

rate bond, then an additional 14 cents 

per ton is required by those operations 

and credited to the reclamation 

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forfeiture fund. It also provides the 

conditions and applicable dates for 

adjustment of this tax, depending on the 

forfeiture fund balance. In addition, it 

provides the conditions that must exist 

for determining that forfeiture liability 

no longer exists and the excise tax can 

be discontinued for a period of time. It 

further provides that an additional 1.2 

cents per ton is required for coal mined 

by surface mining methods and credited 

to the unreclaimed lands fund. With 

regard to the allocation of the taxes 

levied, the section has been revised to 

specify the percentage of each severance 

tax that will be credited to each of the 

following funds: coal mining 

administration and reclamation reserve 

fund; reclamation forfeiture fund; the 

unclaimed lands fund; or, other fund as 

designated. The section was also revised 

to eliminate the tax levied at the rate of 

one cent per ton of coal, the monies of 

which were allocated to reclaim bond 

forfeiture lands. 

5749.11: Nonrefundable Credit (Created 

by House Bill 443) 

This is a new section that provides for 

a nonrefundable credit against the 

severance taxes imposed on coal 

production based on an issued 

reclamation tax credit certificate. 

Rule Changes 

As a result of the statutory changes, 

Federal rule changes, and Ohio’s 

internal review of rules, Ohio made 

numerous rule changes as described in 

the paragraphs below. In addition to the 

substantive changes we mention below, 

non-substantive changes were also 

included with this submission. Nonsubstantive changes include: changes of 

address; inclusion of Web site 

addresses; changes in division names 

and titles; typographical errors; chapter 

titles; paragraph references; citations; 

use of ‘‘performance security’’ rather 

than ‘‘bond;’’ inclusion of reference to 

the National Register of Historic Places; 

name change to ‘‘reclamation 

commission;’’ use of ‘‘applicant’’ and 

‘‘permittee’’ rather than ‘‘operator’’ to 

clarify obligations and responsibilities; 

and, the incorporation by reference to 

dates of Federal regulations and Federal 

laws. Substantive changes to the Ohio 

Administrative Code, Chapter 1501:13 

included in the submission are as 

follows: 

1501:13–1–02: Definitions 

Ohio made several additions and 

modifications of definitions that are 

intended to simplify, clarify, or mirror 

Federal regulations or state statutory 

language. Definitions of the following 

terms have been added to this section: 

angle of draw; effluent limitations; 

incremental mining unit; national 

pollutant discharge elimination system; 

point source discharge; receiving water; 

shadow area; trust fund; and, water 

quality standards. The following 

definitions have been revised: collateral 

bond; engineer; incremental area; 

operator; performance security; 

pollution abatement area; person; 

recurrence interval; runoff; safety factor; 

surveyor; and valid existing rights. 

1501:13–1–03: Restrictions on Financial 

Interest of Employees 

The Reclamation Forfeiture Fund 

Advisory Board was added to this rule 

to clarify that the restrictions on 

financial interest of employees do not 

apply to the advisory board members. 

However, advisory board members do 

have to file an annual statement of 

employment and financial interest. 

This section also clarifies that 

members of the Reclamation 

Commission do not have prohibited 

financial interests under this rule and, 

therefore, will never be ordered by the 

Chief to take remedial action. Instead, 

commission members are required to 

file statements of employment and 

financial interest and are required to 

recuse themselves from proceedings 

which may affect their direct or indirect 

financial interests. Unlike the 

requirements for commissioner 

members, there are prohibited financial 

interest provisions for hearing officers of 

the Reclamation Commission. 

In addition, more detail was added 

regarding employees accepting gifts of 

nominal value from coal companies; 

clarification was added regarding how 

an employee is notified that remedial 

action is necessary to resolve a 

prohibited interest; and, clarification 

was added that appeals procedures 

involving remedial action to be taken by 

employees are different than those to be 

taken by the Chief or a hearing officer 

of the Reclamation Commission. 

1501–13–1–10: Availability of Records 

With regard to the public’s 

accessibility to documents involving 

permits and inspection and enforcement 

actions, this rule was changed to only 

provide access to such documents at the 

Division of Mineral Resources 

Management’s district office that is 

responsible for inspection of the mining 

operation. This rule has also been 

changed to delete the provision that 

copies of information sent by mail at the 

request of a member of the public will 

occur at the division’s expense. 

1501:13–1–14: Incorporation by 

Reference 

This is a new rule that contains a list 

of all Federal regulations and Federal 

laws that are incorporated by reference 

in Chapter 1501:13 of the Ohio 

Administrative Code. The rule also 

explains where the public can find a 

copy of the Federal regulations and 

Federal laws, and the editions of the 

Code of Federal Regulations and United 

States Code in which the regulations 

and laws are published. 

1501:13–3–01: Standards for 

Demonstration of Valid Existing Rights 

This is a new rule that describes the 

demonstration requirements for a 

person claiming valid existing rights. As 

proof of valid existing rights, it requires 

that a person must provide a property 

rights demonstration and compliance 

with the good faith/all permits standard 

or compliance with the needed for and 

adjacent standard. In addition, if a 

person who claims valid existing rights 

to use or construct a road across the 

surface of protected lands, he/she must 

provide additional demonstrations. 

Possession of valid existing rights only 

provides exceptions to the prohibited 

distances from certain structures, 

facilities, and resources as described 

under the areas designated as unsuitable 

for mining provisions of ORC and OAC. 

1501:13–3–02: Submission and 

Processing of Requests for Valid Existing 

Rights Determinations 

This is a new rule that describes the 

requirements for submitting a request 

for a valid existing rights determination, 

which is required before preparing and 

submitting an application for a permit 

or boundary revision for the land for 

which the determination is sought. This 

includes: Requirements for property 

rights demonstration; additional 

requirements for the good faith/all 

permits standard; additional 

requirements for the needed for and 

adjacent standard; and requirements for 

roads. 

This rule also describes the 

procedures Ohio will use to process a 

request for a valid existing rights 

determination. This includes the: Initial 

review of the request; public notice and 

opportunity to comment; determination 

of the Chief; and post-determination 

process. 

1501:13–3–03: Areas Where Mining Is 

Prohibited or Limited 

This rule was reorganized and a 

provision was added to provide 

exceptions for existing operations. The 

provisions of this rule do not apply to 

mining operations for which a valid 

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permit existed when the land came 

under protection of the law. 

1501:13–3–04: Procedures for 

Identifying Areas Where Mining Is 

Prohibited Or Limited 

The rule change clarifies that the rule 

applies to a complete application for a 

coal mining and reclamation operation 

permit as well as to a complete 

application for revision of the 

boundaries of a coal mining and 

reclamation operation permit. It also 

expands the requirements for obtaining 

a road permit to include situations 

where the applicant proposes to relocate 

or close a public road. The rule also 

provides that an applicant for a permit 

to mine on Federal land shall submit a 

permit application to the Director of the 

Office of Surface Mining under the 

terms of the cooperative agreement 

between OSM and Ohio. An applicant 

requesting a determination regarding 

valid existing rights to mine on Federal 

land must submit a request to the 

Director of the Office of Surface Mining. 

1501:13–4–01: General Contents 

Requirements for Permit Applications 

This rule change deletes the provision 

requiring submittal of a permit fee with 

an application. 

1501:13–4–02: Requirements of Coal 

Exploration 

With regard to the requirements for a 

written notice for coal exploration 

operations, this rule was revised to 

remove the limitation regarding the 

requirements for those operations 

involving the removal of 250 tons of 

coal or less. This rule was also revised 

to add the requirement that, for any area 

where mining is prohibited or limited, 

a demonstration that the proposed 

exploration activities have been 

designed to minimize interference with 

the values for which those lands were 

designated as unsuitable for coal mining 

operations, to the extent technologically 

and economically feasible. The 

application must include 

documentation of consultation with the 

owner of the feature causing the land to 

come under the protection of unsuitable 

for mining and, when applicable, with 

the agency with primary jurisdiction 

over the feature with respect to the 

values that caused the land to come 

under such protection. With regard to 

decisions on applications for 

exploration, this rule was revised to add 

that before making a finding, the Chief 

shall provide reasonable opportunity to 

the owner of the feature causing the 

land to come under such protection and, 

when applicable, to the agency with 

primary jurisdiction over the feature 

with respect to the values that caused 

the land to come under the protection, 

to comment on whether the finding is 

appropriate. 

1501:13–4–03: Permit Application, 

Requirements for Legal, Financial, 

Compliance and Related Information 

With regard to right of entry and 

operation information, this rule was 

revised to clarify that right of entry 

information must be provided for the 

permit and shadow areas of 

underground mines. 

1501:13–4–04: Permit Application 

Requirements for Information on 

Environmental Resources 

With regard to groundwater and 

surface water information, this rule was 

revised to add parameters for aluminum 

and sulfates for analyzing water 

samples. This rule now requires that the 

application map be prepared by or 

under the direction of and certified by 

a surveyor (‘‘engineer’’ is removed from 

this portion of the paragraph), or jointly 

by a surveyor and an engineer, since 

this map is the responsibility of a 

surveyor rather than an engineer. This 

rule was also revised to require that the 

supplementary maps and cross sections 

required under this section be prepared 

by or under the direction of and 

certified by an engineer (‘‘surveyor’’ is 

removed from this portion of the 

paragraph), or jointly by an engineer 

and a surveyor, since the information 

required is the responsibility of an 

engineer rather than a surveyor. 

1501:13–4–05: Permit Applications; 

Requirements for Legal, Financial, 

Compliance and Related Information 

With regard to the requirement that an 

operation plan include a description of 

the mining operations proposed and a 

narrative explaining the construction, 

modification, use, maintenance, and 

removal of certain facilities (i.e., dams, 

overburden, topsoil handling, storage 

areas, and structures), this rule was 

revised to delete the requirement that 

retention of such facilities is necessary 

for the postmining land use. The 

revision now provides that the facilities 

be approved by the Chief for postmining 

land use. With regard to the application 

information, this rule was revised to 

include a requirement that it is the 

applicant’s responsibility to provide 

adequate information in the application 

to enable the Chief to determine the 

estimated cost to reclaim the site in the 

event of forfeiture. Such information 

must be sufficient to determine the 

greatest potential reclamation cost 

liability to the state. With regard to the 

operation plan and existing structures, 

this rule was revised to no longer allow 

an applicant to make a showing that 

existing structures meet interim 

program performance standards. With 

regard to the reclamation plan, this rule 

was revised to clarify that that detailed 

design plans shall be certified by an 

engineer, not just prepared under the 

direction of an engineer. 

1501:13–4–06: Permit Applications, 

Revisions, and Renewals, and Transfers, 

Assignments, and Sales of Permit Rights 

With regard to the requirements for 

applications for permits and permit 

renewals, this rule was revised to 

require that an application is deemed 

complete unless the Chief notifies an 

applicant within 14 business days of an 

application submission that an 

application is incomplete and provides 

written notification that identifies the 

deficiencies in the application. This rule 

was also revised to add the requirement 

that the Chief review revisions to 

permits to determine if an adjustment of 

the estimated cost of reclamation will be 

required. This rule was also revised 

regarding transfer, assignment, or sale of 

permit rights by indicating that any 

person seeking to succeed by transfer, 

assignment, or sale must obtain the 

appropriate performance security 

coverage for the permitted operation by 

either obtaining transfer of the original 

performance security coverage of the 

original permittee, provided that the 

successor meets the eligibility 

requirements for obtaining performance 

security together with reliance on the 

reclamation forfeiture fund, or by 

providing sufficient performance 

security under the full-cost option. 

1501:13–4–07: Annual Reports 

With regard to the requirements that 

the permittee file information with the 

Chief 30 days after each anniversary 

date of the issuance of a coal mining 

and reclamation permit, this rule was 

revised to clarify that estimates of 

acreages are required for both the permit 

area and any incremental area or 

incremental mining unit. With regard to 

the requirement to provide performance 

security information, this rule was 

revised to clarify the information that is 

required. With regard to the annual 

map, it also includes the requirement 

that the annual report must include the 

boundaries of each incremental mining 

unit affected during the permit area 

during the permit year for which the 

annual report is filed and for all 

preceding permit years. It removes the 

requirement that the map be shaded in 

various colors, if applicable, for the 

types of bonds posted for each area of 

the permit and if more than one surety 

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was procured. This rule has also been 

revised to add that within 30 days after 

the completion of mining operations on 

a permit, a final report shall be filed 

with the Chief. 

1501:13–4–09: General Map 

Requirements 

With regard to general map 

requirements, this rule was revised to 

clarify that acreage figures shall be 

reported or estimated to the nearest 

1⁄10th of an acre. This rule was also 

revised to remove engineers, to clarify 

that the certification of maps is limited 

to surveyors. A paragraph has been 

added to explain when a professional 

engineer must also sign and seal a map. 

1501:13–4–12: Requirements for Permits 

for Special Categories of Mining 

With regard to approximate original 

contour restoration requirements and 

variances granted under this rule, this 

rule was revised to clarify that 

recreational facilities are considered a 

public postmining land use allowable 

under the rules governing variances. For 

coal preparation plants or support 

facilities not located within the permit 

area of a specified mine, this rule adds 

the requirement that each application 

for a permit shall contain the 

information required for the proposed 

permit area in sufficient detail to 

determine the estimated cost of 

reclamation, if the reclamation has to be 

performed by the state in the event of 

forfeiture of the performance security by 

the permittee. It adds that the 

operational detail shall be sufficient to 

determine the greatest potential 

reclamation cost liability to the state 

and any other operational detail 

required that may affect the cost of 

reclamation. 

1501:13–4–13: Underground Mining 

Permit Application Requirements for 

Information on Environmental 

Resources 

With regard to groundwater and 

surface water information, this rule was 

revised to require testing for the added 

parameters of aluminum and sulfates. 

This rule has also been revised to allow 

surveyors to certify maps, but not cross 

sections, which are certified by an 

engineer. 

1501:13–4–14: Underground Mining 

Permit Application Requirements for 

Reclamation and Operations Plans 

With regard to the requirement that 

the narrative for the operation plan of an 

underground mining permit application 

explain the construction, modification, 

use, maintenance, and removal of 

certain facilities, this rule was revised to 

delete the requirement that retention of 

such facilities is necessary for 

postmining land use. The revision now 

provides that the facilities be approved 

by the Chief for postmining land use. 

With regard to underground mining 

permit application general 

requirements, this rule was revised to 

add the requirement that each 

application for a permit shall contain 

the information required for the 

proposed permit area in the detail 

necessary for the Chief to determine the 

estimated cost of reclamation, if the 

reclamation has to be performed by the 

state in the event of forfeiture of the 

performance security by the permittee. 

It adds that the operational detail shall 

be sufficient to determine the greatest 

potential reclamation cost liability to 

the state and any other operational 

detail required that may affect the cost 

of reclamation. With regard to the 

operation plan and existing structures, 

this rule was revised to no longer allow 

an applicant to make a showing that 

existing structures meet interim 

program performance standards. With 

regard to the reclamation plan, this rule 

was revised to clarify that detailed 

design plans shall be certified by an 

engineer, not just prepared and under 

the direction of an engineer. With regard 

to the subsidence control plan, this rule 

was revised to add the requirement that 

an application shall include a map of 

the shadow area, including the angle of 

draw for the workings described. 

1501:13–4–15: Authorization To 

Conduct Coal Mining on Pollution 

Abatement Areas 

The rule regarding effluent limits of a 

remining NPDES permit was revised to 

clarify that it applies to operators 

seeking authorization to conduct mining 

operations under modified effluent 

limits of a remining NPDES permit. The 

rule was revised to clarify and establish 

minimum sampling and data collection 

criteria, provide criteria for exceptions 

for meeting the minimum sampling and 

data collection, and provide exemptions 

from meeting numeric effluent 

standards when using best management 

practices under certain conditions. The 

rule revision also eliminates the 

requirement that the permittee must 

notify the Chief prior to the start and 

upon completion of each step of the 

pollution abatement plan. The rule was 

also changed to clarify criteria for 

treatment of mine discharges under the 

pollution abatement plan. Changes to 

the performance security release criteria 

clarify that numeric effluent limits 

established in the remining NPDES 

permit must be met when applicable. 

1501:13–4–16: Requirements for 

Exemption for Coal Extraction 

Incidental to the Extraction of Other 

Minerals 

With regard to the requirements for 

exemption for coal extraction incidental 

to the extraction of other minerals, this 

rule has been revised to add language 

regarding coal mining activities that are 

exempt from the requirements of ORC 

Chapter 1513. For an activity to be 

exempt from the requirements of the 

ORC, three of the five requirements 

were clarified: 1) the requirement that 

coal must be produced from a geological 

stratum lying above or immediately 

below the deepest stratum from which 

other minerals are extracted for 

purposes of bona fide sale or reasonable 

commercial use was clarified to define 

that the term ‘‘immediately below’’ 

means that the coal to be mined shall be 

located not more than three feet below 

the lowest other mineral to be mined; 2) 

language was added that other minerals 

mined in a mining area, but not in the 

stratigraphic column of coal removed, 

shall not be used to calculate 

cumulative production or cumulative 

revenue; and 3) language was added 

stating that augering of coal is not used 

as a mining method, except for permits 

issued prior to February 29, 1988, with 

approved mining plans that allowed the 

augering of coal. 

1501:13–5–01: Review, Public 

Participation, and Approval or 

Disapproval of Permit Applications and 

Permit Terms and Conditions 

With regard to the review of permit 

applications, revisions, and renewals, 

this rule was revised to add time frames 

for the review process. This rule was 

also revised to differentiate between the 

time frames for review when no 

informal conference is held and when 

an informal conference is held. A 

revision was also made to provide that 

the Chief shall grant or deny a permit 

not more than 240 business days after 

the submission of a complete 

application. It provides that any time 

during which the applicant is making 

revisions to the application or providing 

additional information requested by the 

Chief shall not be included in the 240 

business days. If the Chief determines 

that a permit cannot be granted or 

denied within this time frame, the Chief 

shall provide the applicant with written 

notice of the expected delay no more 

than 210 business days after the 

submission of a complete application. 

The word ‘‘significant’’ was added 

before ‘‘revisions’’ throughout this 

section to clarify that public notice of 

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8194 Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 

the filing of applications for significant 

permit revisions is required. 

1501:13–7–01: General Requirements for 

Providing Performance Security for Coal 

Mining and Reclamation Operations 

With regard to performance securities, 

this rule was revised to clarify 

provisions for those permittees opting to 

provide performance security with 

reliance on the reclamation forfeiture 

fund (performance security pool) and 

provide new rules for those permittees 

opting to provide performance security 

without reliance on the fund (full-cost 

performance security). The rule now 

allows performance security to be 

deposited for incremental mining units 

and establishes criteria for identifying 

incremental mining units on the 

application map and on subsequent 

annual maps. It also states that once a 

permittee opts to provide full-cost 

performance security, the permittee may 

not change to using performance 

security with reliance on the 

reclamation forfeiture fund participation 

once coal extraction begins. 

Changes establish that the Chief will 

determine an estimated cost of 

reclamation for the state to reclaim the 

site should the permittee default on its 

obligation to reclaim. The rule describes 

the information the Chief will use to 

develop this estimate. The rule now 

specifies that the applicant must notify 

the Chief of the method chosen for 

providing performance security and 

provide the required amount of 

performance security after the Chief 

provides the written estimate to the 

applicant. Changes provide that for an 

applicant to be eligible to provide 

performance security with reliance on 

the reclamation forfeiture fund, the 

applicant, an owner or controller of the 

applicant, or an affiliate of the applicant 

must have had a permit in Ohio for not 

less than five years. The rule now 

establishes that if forfeiture of 

performance security on a permit that is 

reliant on the reclamation forfeiture 

fund occurs, the fund will provide the 

difference between the performance 

security provided by the permittee and 

the estimated cost of reclamation 

provided by the Chief. Changes also 

provide processes for obtaining release 

of excess performance security under 

both options and require the Chief to 

make adjustments to the estimated cost 

of reclamation. 

1501:13–7–02: Amount and Duration of 

Performance Security 

With regard to the amount and 

duration of a performance security, this 

rule was revised to distinguish the 

amount of performance security for 

those permittees opting to provide 

performance security with reliance on 

the reclamation forfeiture fund 

(performance security pool) from those 

permittees opting to provide 

performance security without reliance 

on the fund (full-cost performance 

security). The rule further describes 

responsibilities for providing 

performance security for areas affected 

by material damage and water supplies 

from subsidence under each option. The 

rule now lists events that trigger the 

Chief’s review and adjustment of 

performance security, establishes a 

permittee’s right to request an informal 

review concerning adjustments of 

performance security, and provides that 

a permittee may request the Chief to 

reduce the performance security 

estimate when the method of operation 

or other circumstances reduce the cost 

of reclamation. An adjustment to 

performance security is not considered 

a release of performance security. 

1501:13–7–03: Form, Conditions, and 

Terms of Performance Security 

With regard to the form, conditions, 

and terms of performance securities, 

this rule was revised to include a trust 

fund as an acceptable form of 

performance security. The rule is 

clarified to require that the name of the 

permittee on the performance security 

be identical to the name of the permittee 

on the permit. The rule also provides 

specific criteria that each form of bond 

must meet. Revisions further clarify that 

upon insolvency of an institution that 

holds the performance security, 

permittees under the full-cost option 

will have 90 days to replace 

performance security coverage. 

Permittees who are reliant on the 

reclamation forfeiture fund will have up 

to one year to replace coverage. 

1501:13–7–04: Self-Bonding 

With regard to self-bonding 

requirements, this rule has been revised 

to provide that an indemnity agreement, 

submitted by a limited liability 

company, must be signed by at least one 

member who is authorized to bind the 

company. The copy of such 

authorization shall be provided along 

with an affidavit certifying that such an 

agreement is valid under all applicable 

Federal and state laws. 

1501:13–7–05: Procedures, Criteria, and 

Schedule for Release of Performance 

Security for Permits Reliant on the 

Reclamation Forfeiture Fund 

With regard to performance securities, 

this section heading was revised to 

clarify that this rule applies to a 

permittee that provides performance 

security together with reliance on the 

reclamation forfeiture fund. With regard 

to the procedures for seeking release of 

performance security, this rule was 

revised to clarify that a request for 

approval of a reclamation phase shall 

also include a request for release of 

performance security. With regard to the 

request for approval of a reclamation 

phase III request for release of 

performance security, this rule has been 

revised to provide that the number of 

acres of the area requested for release 

that are reclaimed as lands eligible for 

remining must be stated with the 

request. With regard to the criteria and 

schedule for release of performance 

security, this rule was revised to clarify 

that any portion of an incremental area 

requiring extended liability because of 

augmentation or failure to achieve the 

crop yields for prime farmland required 

for phase II performance security may 

be separated from the rest of the 

incremental area and have performance 

security provided separately if approved 

by the Chief. It also requires that in 

addition to other requirements for 

completeness of reclamation, any 

permanent structures to be maintained 

as part of the postmining land use must 

be included in the approved 

reclamation plan prior to phase II 

release. With regard to the approval of 

a reclamation phase, a new paragraph 

was added regarding remining and 

security release to provide that a portion 

of an incremental area requiring a 

reduced period of liability because of its 

classification as a remining area shall be 

separated from the rest of the 

incremental area and shall be eligible 

for phase III performance security 

release. 

1501:13–7–05.1 Procedures, Criteria and 

Schedule for Release of Performance 

Security for Permits not Reliant on the 

Reclamation Forfeiture Fund 

This is a new rule applying only to a 

permittee that provides performance 

security without reliance on the 

reclamation forfeiture fund. This rule 

provides the terms, conditions, and 

procedures for seeking approval of a 

reclamation phase and release of 

performance security and the criteria 

and schedule for release of performance 

security. 

1501:13–7–06: Performance Security 

Forfeiture Criteria and Procedures 

With regard to forfeiture procedures, 

this rule was revised to provide that, 

should the permittee fail to enter into a 

reclamation agreement or fail to comply 

with the terms of the reclamation 

agreement and a trust fund was the 

performance security filed with the 

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Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 8195 

division, the forfeiture order shall 

inform the permittee that the state will 

proceed as set forth in the terms of the 

trust agreement. 

A paragraph was removed that 

provided that if during the forfeiture 

reclamation conducted by the state it 

appears that the cost of reclamation is 

greater than the performance bond filed 

for the incremental area and if there 

remains on file with the Chief 

performance bond for other incremental 

areas which have not already been 

forfeited, then the Chief may proceed to 

declare forfeit the remaining bond and 

collect monies under the bond up to an 

amount equal to the difference between 

the actual costs of reclamation and 

monies already collected. New language 

was added to the section to clarify that 

the Chief shall order forfeiture of all 

remaining performance security on 

deposit for the permit. 

1501:13–7–06.1: Tax Credit for 

Reclamation Outside an Applicant’s 

Permit Area 

This is a new rule that applies to a 

permittee providing performance 

security together with reliance on the 

reclamation forfeiture fund who wishes 

to claim a tax credit under Section 

5749.1 of the Revised Code. This rule 

sets forth the terms and conditions 

under which the Chief may approve an 

application to perform reclamation and 

establishes eligibility and application 

requirements for permittees applying for 

a tax credit. It also establishes 

procedures for obtaining the tax credit 

once reclamation is completed. 

1501:13–7–08: Reclamation Phase 

Approval Conference and Performance 

Security Release Conference 

With regard to reclamation phase 

approval and performance security 

release, this section heading was 

changed to clarify that this rule applies 

to reclamation phase approval 

conferences in addition to performance 

security release conferences. With 

regard to the procedures for requesting 

such releases, this rule was revised to 

establish a reclamation approval 

conference since reclamation can be 

approved on portions of permits or 

incremental mining units without a 

release of performance security on sites 

under full-cost performance security. 

1501:13–9–01: Signs and Markers 

With regard to signs and markers, this 

rule was revised to clarify that perimeter 

markers must be placed to clearly define 

the perimeter so that adjacent markers 

are visible by a person standing at any 

other marker along the perimeter. 

Markers must be maintained until final 

grading is approved. 

1501:13–9–03: Topsoil Handling 

With regard to the topsoil to be 

salvaged and removed before any 

drilling for blasting, mining, spoil, or 

other surface disturbances, this rule was 

revised to provide the conditions for 

which the Chief may choose not to 

require the removal of topsoil for minor 

disturbances that occur at the site of 

small structures, such as power poles, 

signs, or fence lines, or will not destroy 

the existing vegetation and will not 

cause erosion. With regard to final 

grading and replacement of topsoil, this 

rule was revised to provide that final 

grading shall follow the completion of 

backfilling and rough grading with a 

timeframe that will allow replacement 

of topsoil or approved resoiling 

materials to begin and be completed 

during either the current normal period 

for favorable planting or at the start of 

the first appropriate normal period for 

favorable planting following final 

grading, whichever occurs first. It also 

provides that resoiling shall begin, 

continue reasonably uninterrupted, and 

be completed prior to the end of the 

normal period for favorable planting 

unless the permittee receives an 

extension of time limit because of 

climatic conditions. With regard to final 

grading and replacement of topsoil and 

soil thickness, this rule was revised to 

clarify that topsoil or approved 

alternative resoiling materials shall be 

redistributed in a manner that achieves 

an approximately uniform, stable 

thickness when consistent with the 

postmining land use, contours, and 

surface-water drainage systems. Soil 

thickness may also be varied to the 

extent such variations help meet the 

specific revegetation goals identified in 

the permit. 

1501:13–9–06: Use of Explosives 

With regard to the general provisions 

of the use of explosives, this rule was 

revised to provide that blasts that use 

more than five pounds of explosive or 

blasting agent shall be conducted 

according to the schedule required. 

With regard to how blasting operations 

shall be conducted, this rule was 

revised to clarify that in addition to a 

certified blaster, a member of the 

blasting crew under the direct 

supervision of the certified blaster may 

detonate a blast. With regard to who 

shall be responsible for controlling 

access to the blasting area to prevent the 

presence of livestock or unauthorized 

persons at least ten minutes before each 

blast, this rule was revised to delete 

references to the ‘‘permittee’’ and 

include references to ‘‘certified mine 

foreperson’’ because that is the person 

responsible for controlling access to the 

blasting area. With regard to blasting 

occurring within one-half mile of any 

public or private institution, this rule 

was revised to clarify that notification to 

an institution occurs on the same day of 

a blast instead of the day before. With 

regard to the definition of flyrock, this 

rule was revised to provide that debris 

does not include dust. The rule 

concerning flyrock being cast beyond 

the permit boundary was revised to 

require initial telephone notification to 

the Division of Mineral Resources 

Management within two hours, 

followed by a more detailed written 

report within three days. The rule 

regarding airblasts was revised to 

require that maximum levels not exceed 

133 decibels (except as authorized). 

With regard to seismic measuring 

systems, this rule was revised to replace 

existing provisions regarding seismic 

measuring systems with more detailed 

seismograph specifications to match 

current technology. The rule regarding 

blast records was revised to clarify the 

data required in blast records, to match 

current technology, and more clearly 

document how a blast was designed. 

With regard to when bulk-loaded 

explosives are used, this rule was 

revised to provide that the blast record 

data for bulk-loaded explosives must be 

completed no more than 24 hours after 

the blast is detonated. The rule 

regarding maximum ground vibration 

was revised to refer to the frequencydependent particle velocity limits that 

are being added through the chart. With 

regard to frequency-dependent particle 

velocity limits, a new chart was added 

that establishes frequency-dependent 

particle velocity limits using the Bureau 

of Mines’ alternative blasting level 

criteria, which have become the 

standard of comparison for blasting 

seismology consultants and the legal 

community. The rule for protected 

structures and facilities was changed to 

clarify the types of structures and 

facilities within 300 feet that are 

protected. With regard to seismographic 

records, ‘‘scaled-distance’’ was changed 

to ‘‘scaled distance’’ and ‘‘Ds’’ was 

changed to ‘‘SD’’ to reflect standard 

industry usage. The term ‘‘eightmillisecond period’’ was changed to 

‘‘period less than eight milliseconds’’ to 

clarify the requirements. 

1501:13–9–10: Training, Examination, 

and Certification of Blasters 

With regard to the certified blaster 

examination, this rule was revised to 

require 40 hours of training for initial 

blaster certification instead of 30 hours. 

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8196 Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 

The section on certification and 

recertification was revised to clarify 

that, in addition to the Chief, an agency, 

board, or institution authorized by the 

Chief may provide certification. It also 

provides that each person approved for 

certification shall receive a certificate 

suitable for office display and a walletsize identification card. The certificate 

and identification card shall include, at 

a minimum, the type of certification, the 

person’s name, certification number and 

date of expiration, and the name and 

signature of the Chief or of the official 

of the authorized agency, board, or 

institution granting the certification. 

1501:13–9–13: Contemporaneous 

Reclamation 

With regard to contemporaneous 

reclamation, this rule was revised to 

provide that highwall mining is added 

to the language regarding auger mining 

timing requirements. With regard to 

final grading and replacement of topsoil, 

seeding and planting, and tree planting, 

this rule was revised to provide a timing 

element for each phase of reclamation. 

With regard to the Chief’s granting 

additional time for backfilling and 

rough grading, this rule was revised to 

provide the requirements for requesting 

a permit revision including minimum 

criteria that must be provided to justify 

additional time. 

1501:13–14–02: Enforcement 

With regard to when the Chief has 

issued a cessation order for failure to 

abate a violation of the 

contemporaneous reclamation 

requirements, and performance security 

was provided together with reliance on 

the reclamation forfeiture fund, this rule 

was revised to add that the Chief may 

require the permittee to increase the 

amount of performance security for the 

permit from $2,500 per acre to $5,000 

per acre of land. This rule was also 

revised to provide that the Chief may 

determine the amount of performance 

security increase depending on the 

status of reclamation at the site. In 

addition, if the Chief orders the 

permittee to increase the amount of 

performance security, the Chief shall 

also order the permittee to show cause 

why the permittee has the ability to 

comply with the requirements. If the 

Chief orders the permittee to increase 

the amount of performance security, the 

increased performance security shall 

remain in effect for the permit, 

including all future acreage of the 

permit, until the Chief determines that 

the amount of performance security may 

be reduced. A reduction in the amount 

of performance security shall not be 

considered release of performance 

security. 

1501:13–14–05: Informal Conferences 

With regard to requests for informal 

conferences, this rule was revised to 

clarify and include that the permittee 

may request an informal conference on 

a proposed performance security 

adjustment in addition to requesting 

that the Chief hold an informal 

conference on the application for a 

permit or application for significant 

revision or renewal of a permit. It also 

provides that the request shall be filed 

with the Chief not later than 30 days 

after receipt by the permittee of the 

proposed performance security 

adjustment. With regard to the 

timeliness of an informal conference, 

this rule has been revised to add the 

provision that the Chief hold an 

informal conference within a reasonable 

time, not to exceed 60 days following 

the close of the comment period for a 

permit application or significant 

revision or renewal or within a 

reasonable time, not to exceed 60 days 

following receipt by the permittee of a 

performance security adjustment. It was 

also revised to provide that if the 

informal conference has been held, the 

Chief shall issue and furnish the 

applicant for a permit, persons who 

participated in the informal conference, 

and persons who filed written 

objections, with the written finding of 

the Chief granting or denying the permit 

in whole or in part and stating the 

reasons therefore within 60 days of the 

conference. 

Reclamation Forfeiture Fund Advisory 

Board Information 

Included in this submission are two 

reports, dated June 2009 and June 2011, 

providing an actuarial analysis of the 

Reclamation Forfeiture Fund (Fund) 

along with letters from the Reclamation 

Forfeiture Fund Advisory Board (Board) 

to the Governor of Ohio dated June 2009 

and June 2011 regarding the 

Reclamation Forfeiture Fund and the 

actuarial analysis. 

Actuarial Analysis Reports: The 2009 

and 2011 actuarial analysis reports were 

the result of the Board’s commission of 

Pinnacle Actuarial Resources, Inc. to 

prepare an analysis of the Fund. The 

2009 actuarial analysis report made 

similar findings to the 2011 report using 

a somewhat different analytical 

approach, but reported a higher amount 

of expected risk to the Fund. Since the 

2011 report is the most current, we have 

summarized it below for purposes of 

this notice. 

The 2011 report concluded that the 

Fund is solvent on a short-term basis, as 

the current Fund assets exceed the 

current Fund’s outstanding liabilities 

and obligations for forfeited reclamation 

projects. For longer-term solvency, the 

measurement compares the current 

available Fund’s assets to the Fund’s 

long-term expected exposure or liability. 

The reviewers do not believe that the 

Fund currently meets the criteria for 

long-term solvency, nor do scenario 

projections of future revenues fully 

place it in a compliant basis for some 

period of time into the future. There is 

currently a mismatch between the 

revenues collected and the future 

exposure to reclamation forfeiture for 

which this revenue and accumulated 

capital is needed. The report further 

concludes: ‘‘Based upon the 

methodology and assumptions * * *, 

we have estimated the present value of 

expected liability of $32.254 million.’’ 

The report further states: ‘‘In actuarial 

and insurance regulatory language, the 

Fund has significant risk of material 

adverse deviation from the estimated 

expected loss.’’ 

Reclamation Forfeiture Fund 

Advisory Board Recommendations: The 

Board sent a letter to the Governor of 

Ohio on June 27, 2011, and did not 

recommend changes to the severance 

tax rates. The Board felt that more time 

was necessary to study the effectiveness 

of the present revenue structure to meet 

the requirements of the Fund. The letter 

outlined the key points concerning the 

review of the report, which included 

that the Fund is adequate to address the 

small current forfeiture liabilities; the 

current liabilities were estimated to be 

less than $100,000 and the fund had 

$9.92 million as of June 15, 2011; the 

backlog of forfeited sites was reclaimed 

at the end of calendar year 2010, with 

only small maintenance costs 

remaining; the Fund never received $5 

million from the legislature in 2007 to 

eliminate the backlog of forfeitures as 

intended by House Bill 443; the 

actuarial study projects various 

financial liability scenarios into the 

future; the study concludes that the 

Fund may have longer-term solvency 

issues in the future, based on two of the 

three projected scenarios; the Division 

of Mineral Resources Management 

continues to do a very good job of 

fulfilling their duties in regulating the 

coal industry’s performance regarding 

contemporaneous reclamation of 

permitted sites and of overseeing the 

reclamation of forfeited sites; generally 

speaking, the Ohio coal industry’s 

financial strength and attention to good 

reclamation practices have improved 

over the past five to ten years; and since 

the Fund may have a longer-term 

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Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 8197 

solvency issue, an abundance of caution 

dictates that the Board review the 

Fund’s status next year. The Board 

recommended that an updated actuarial 

study be prepared in conjunction with 

the biennial report due to the Governor 

in 2013. In 2009, the Board asked 

DMRM to provide an analysis of 

Alternative Bonding Systems (ABS) 

conducted in other coal mining states. 

With the assistance of Pinnacle studying 

ABS systems in West Virginia and 

Kentucky, the Board believes that 

Ohio’s ABS is at least as effective as 

those systems; the Board believes that a 

reasonable timeframe to reclaim 

forfeited sites is in the range of three to 

five years; should one of the largest five 

permit holders become insolvent, the 

Fund would likely be inadequate to 

allow reclamation within the 3 to 5-year 

range; and the Board will continue to 

study the model prepared by Pinnacle to 

refine, improve, and monitor this model 

of the Fund’s inadequacy. 

The full text of the program 

amendment is available for you to read 

at the locations listed above under 

ADDRESSES. 

III. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether the submission 

satisfies the applicable program 

approval criteria of 30 CFR 732.15. If we 

approve the amendment, it will become 

part of the Ohio program. 

Electronic or Written Comments 

If you submit written comments, they 

should be specific, confined to issues 

pertinent to the proposed regulations, 

and explain the reason for any 

recommended change(s). We appreciate 

any and all comments, but those most 

useful and likely to influence decisions 

on the final regulations will be those 

that either involve personal experience 

or include citations to and analyses of 

SMCRA, its legislative history, its 

implementing regulations, case law, 

other pertinent state or Federal laws or 

regulations, technical literature, or other 

relevant publications. We cannot ensure 

that comments received after the close 

of the comment period (see DATES) or 

sent to an address other than those 

listed above (see ADDRESSES) will be 

included in the docket for this 

rulemaking and considered. 

Public Availability of Comments 

Before including your address, phone 

number, email address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you may ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. We will not consider anonymous 

comments. 

Public Hearing 

If you wish to speak at the public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT by 4 

p.m., local time February 29, 2012. If 

you are disabled and need reasonable 

accommodations to attend a public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT. We 

will arrange the location and time of the 

hearing with those persons requesting 

the hearing. If no one requests an 

opportunity to speak, we will not hold 

the hearing. 

To assist the transcriber and ensure an 

accurate record, we request, if possible, 

that each person who speaks at a public 

hearing provide us with a written copy 

of his or her comments. The public 

hearing will continue on the specified 

date until everyone scheduled to speak 

has been given an opportunity to be 

heard. If you are in the audience and 

have not been scheduled to speak and 

wish to do so, you will be allowed to 

speak after those who have been 

scheduled. We will end the hearing after 

everyone scheduled to speak and others 

present in the audience who wish to 

speak, have been heard. 

Public Meeting 

If there is only limited interest in 

participating in a public hearing, we 

may hold a public meeting rather than 

a public hearing. If you wish to meet 

with us to discuss the submission, 

please request a meeting by contacting 

the person listed under FOR FURTHER

INFORMATION CONTACT. All such meetings 

are open to the public and, if possible, 

we will post notices of meetings at the 

locations listed under ADDRESSES. We 

will make a written summary of each 

meeting a part of the administrative 

record. 

IV. Procedural Determinations 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

(OMB) under Executive Order 12866. 

Other Laws and Executive Orders 

Affecting Rulemaking 

When a State submits a program 

amendment to OSM for review, our 

regulations at 30 CFR 732.17(h) require 

us to publish a notice in the Federal 

Register indicating receipt of the 

proposed amendment, its text or a 

summary of its terms, and an 

opportunity for public comment. We 

conclude our review of the proposed 

amendment after the close of the public 

comment period and determine whether 

the amendment should be approved, 

approved in part, or not approved. At 

that time, we will also make the 

determinations and certifications 

required by the various laws and 

executive orders governing the 

rulemaking process and include them in 

the final rule. 

List of Subjects in 30 CFR Part 935 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: November 23, 2011. 

Thomas D. Shope, 

Regional Director, Appalachian Region. 

[FR Doc. 2012–3424 Filed 2–13–12; 8:45 am] 

BILLING CODE 4310–05–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 50 and 51 

[EPA–HQ–OAR–2010–0885, FRL–9630–6] 

RIN 2060–AR32 

Implementation of the 2008 National 

Ambient Air Quality Standards for 

Ozone: Nonattainment Area 

Classifications Approach, Attainment 

Deadlines and Revocation of the 1997 

Ozone Standards for Transportation 

Conformity Purposes 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing 

thresholds for classifying nonattainment 

areas for the 2008 ozone National 

Ambient Air Quality Standards 

(NAAQS) (the ‘‘2008 ozone NAAQS’’) 

promulgated by the EPA on March 12, 

2008. This proposal also addresses the 

timing of attainment dates for each 

classification. Finally, we are proposing 

to revoke the 1997 ozone NAAQS 1 year 

after the effective date of designations 

for the 2008 ozone NAAQS for 

transportation conformity purposes 

only. 

DATES: Comments must be received on 

or before March 15, 2012. Please refer to 

SUPPLEMENTARY INFORMATION for 

additional information on the comment 

period. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0885, by one of the 

following methods: 

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