[Federal Register Volume 71, Number 29 (Monday, February 13, 2006)]
[Proposed Rules]
[Pages 7480-7489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-1990]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[OH-250-FOR]
Ohio Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
-----------------------------------------------------------------------
SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is 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). Ohio proposes to revise the
Ohio Revised Code (ORC) regarding changes to the State's alternate
bonding system (bond pool). The amendment is intended to satisfy a
program condition codified in the Federal regulations.
This document gives the times and locations that the Ohio program
and proposed amendment to that program are available for your
inspection, the comment period during which you may submit written
comments on the amendment, and the procedures that we will follow for
the public hearing, if one is requested.
DATES: Written comments must be received on this amendment on or before
4 p.m. (local time), March 15, 2006 to ensure our consideration. If
requested, we will hold a public hearing on the amendment on March 10,
2006. We will accept requests to speak until 4 p.m., local time, on
February 28, 2006.
ADDRESSES: You may submit comments, identified by ``OH-250-FOR'', by
any of the following methods:
E-mail: [email protected]. Include ``OH-250-FOR'' in the
subject line of the message;
Mail/Hand Delivery: Mr. George Rieger, Chief, Pittsburgh
Field Division, Office of Surface Mining Reclamation and Enforcement, 3
Parkway Center, Pittsburgh, Pennsylvania 15220; or
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency
docket number for this rulemaking. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading in the
SUPPLEMENTARY INFORMATION section of this document. You may also
request to speak at a public hearing by any of the methods listed above
or by contacting the individual listed under FOR FURTHER INFORMATION
CONTACT.
Docket: You may review copies of the Ohio program, this amendment,
a listing of any scheduled public hearings, and all written comments
received in response to this document at the addresses listed below
during normal business hours, Monday through Friday, excluding
holidays. You may also receive one free copy of this amendment by
contacting OSM's Pittsburgh Field Division listed below.
Mr. George Rieger, Chief, Pittsburgh Field Division, Office of Surface
Mining Reclamation and Enforcement, 3 Parkway Center, Pittsburgh,
Pennsylvania 15220. Telephone: (412) 937-2153. E-mail:
[email protected].
Mr. Michael Sponsler, Chief, Division of Mineral Resources Management,
Ohio Department of Natural Resources, 1855 Fountain Square Court-Bldg.
H-2, Columbus, Ohio 43224. Telephone: (614) 265-6633.
FOR FURTHER INFORMATION CONTACT: Mr. George Rieger, Chief, Pittsburgh
Field Division, Telephone: (412) 937-2153. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program
II. Description of the Proposed 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 the Act * * * and rules and
regulations consistent with regulations issued by the Secretary
pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis
of these criteria, the Secretary of the Interior conditionally approved
the Ohio program on August 16, 1982. You can find background
information on the Ohio program, including the Secretary's findings,
the disposition of comments, and conditions of approval of the Ohio
program in the August 16, 1982, Federal Register (47 FR 34687). You can
also find later actions concerning Ohio's program and program
amendments at 30 CFR 935.11, 935.15, and 935.16.
II. Description of the Proposed Amendment
By letter dated December 19, 2005, Ohio sent us a proposed
amendment to its program (Administrative Record Number OH-2185-07)
under SMCRA (30 U.S.C. 1201 et seq.). Ohio has submitted a draft bill
for the Ohio legislature to consider that revises the ORC regarding
changes to the State's alternate bonding system (bond pool). The
amendment is intended to satisfy a program condition codified in the
Federal regulations at 30 CFR 935.11(h). The program condition provides
that Ohio must 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.
In addition to the revisions described in detail below, the
amendment submitted by Ohio contains numerous changes to existing
citations to reflect
[[Page 7481]]
changes in renumbering due to the proposed amendments. Also, numerous
minor formatting changes have also been proposed to be made throughout
the provisions. Section 1 of the amendment submittal provides the
following specific revisions:
Section 1513.01(W) Definition of ``Performance Security.'' This
definition is new, and provides as follows:
Performance Security means a form of financial assurance, including,
without limitation, a surety bond issued by a surety licensed to do
business in this state; an annuity; cash; a negotiable certificate
of deposit; an irrevocable letter of credit that automatically
renews; a negotiable bond of the United States, this state, or a
municipal corporation in this state; a trust fund of which the state
is named a conditional beneficiary; or other form of financial
guarantee or financial assurance that is acceptable to the chief.
Section 1513.02(A)(5) is amended by deleting the word ``bond'' and
adding in its place the word ``security.''
Section 1513.07(A)(2) is amended in the last sentence by deleting
the words ``bond coverage'' and adding in their place the words
``performance security.''
Section 1513.07(B)(1) is amended by deleting the existing language
and renumbering the subdivisions.
Section 1513.07(B)(2)(e)(i) is amended by adding the words
``performance security'' between the words ``mining bond'' and the
words ``or similar security.''
Section 1513.07(B)(2)(e)(ii) is amended by adding the words
``performance security'' between the words ``coal mining surface bond''
and the words ``or similar security.''
Section 1513.07(E)(6) is amended by revising the phrase ``surface
mining bond, or security deposited'' by adding the words ``performance
security'' and ``similar.'' As amended the phrase is as follows:
``surface mining bond performance security or similar security
deposited.''
Section 1513.07(E)(7)(f)(iv) is amended by revising the phrase
``surface mining bond, or security deposited'' by adding the words
``performance security'' and ``similar.'' As amended the phrase is as
follows: ``surface mining bond performance security or similar security
deposited.''
Section 1513.071(A) is amended by adding the words ``of the
division of mineral resources management'' immediately following the
word ``chief'' in the first sentence. Also in the first sentence, the
word ``his'' is deleted and replaced by the words ``the applicant's.''
Section 1513.071(B) is amended by adding the words ``the chief's''
in place of the word ``his'' that is being deleted in the third
sentence. Also, the word ``bond'' is deleted and replaced by the word
``security'' in the second from last sentence.
Section 1513.08 has been amended by deleting some language and
adding a lot of new language. As amended, section 1513.08 provides as
follows:
Sec. 1513.08. (A) After a coal mining and reclamation permit
application has been approved, but before the permit is issued, the
applicant shall file with the chief of the division of mineral
resources management, on a form prescribed and furnished by the chief,
the performance security required under this section.
(B) Using the information contained in the permit application; the
requirements contained in the approved permit and reclamation plan;
and, after considering the topography, geology, hydrology, and the
revegetation potential of the area of the approved permit, the probable
difficulty of reclamation; the chief shall determine the estimated cost
of reclamation under the initial term of the permit if the reclamation
has to be performed by the division of mineral resources management in
the event of forfeiture of the performance security by the applicant.
The chief shall send written notice of the amount of the estimated cost
of reclamation by certified mail to the applicant. The applicant shall
send written notice to the chief indicating the method by which the
applicant will provide the performance security pursuant to division
(C) of this section. Applicants for preparation plants or coal refuse
disposal areas not located within the permit area of a producing mine
shall provide performance security in accordance with division (C)(1)
of this section in the full amount of the estimated cost of reclamation
as determined by the chief.
(C) The applicant shall provide the performance security in an
amount using one of the following methods:
(1) If the applicant elects to provide performance security without
reliance on the reclamation forfeiture fund created in section 1513.18
of the Revised Code, the amount of the estimated cost of reclamation as
determined by the chief under division (B) of this section for the
increments of land on which the operator will conduct coal mining and
reclamation under the initial term of the permit as indicated in the
application;
(2) If the applicant elects to provide performance security
together with reliance on the reclamation forfeiture fund through
payment of the additional tax on the severance of coal that is levied
under division (A)(8) of section 5749.02 of the Revised Code, an amount
of twenty-five hundred dollars per acre of land on which the operator
will conduct coal mining and reclamation under the initial term of the
permit as indicated in the application. In order to be eligible to rely
upon the reclamation forfeiture fund for a portion of the performance
security, the applicant must have held a permit to mine coal in Ohio
for a minimum of five (5) years. In the event of forfeiture of
performance security that was provided in accordance with division
(C)(2) of this section, the difference between the amount of that
performance security and the estimated cost of reclamation as
determined by the chief under division (B) of this section shall be
obtained from money in the reclamation forfeiture fund as needed to
complete the reclamation. The performance security provided under
division (C) of this section for the entire area to be mined under one
permit issued under this chapter shall not be less than ten thousand
dollars. The performance security shall cover areas of land affected by
mining within or immediately adjacent to the permitted area, so long as
the total number of acres does not exceed the number of acres for which
the performance security is provided. However, the authority for the
performance security to cover areas of land immediately adjacent to the
permitted area does not authorize a permittee to mine areas outside an
approved permit area. As succeeding increments of coal mining and
reclamation operations are to be initiated and conducted within the
permit area, the permittee shall file with the chief additional
performance security to cover the increments in accordance with this
section. If a permittee intends to mine areas outside the approved
permit area, the permittee shall provide additional performance
security in accordance with this section to cover the areas to be
mined.
If the performance security is required under this section for a
coal preparation plant or coal refuse disposal area that is in
existence on the effective date of this amendment and that is not
located within a permitted area of a mine, the permittee shall provide
the performance security not later than one year after the effective
date of this amendment.
(D) A permittee's liability under the performance security shall be
limited to the obligations established under the permit, which include
completion of the reclamation plan in order to make the land capable of
supporting the postmining land use that was approved in the permit. The
period of liability under the performance security shall be
[[Page 7482]]
for the duration of the coal mining and reclamation operation and for a
period coincident with the operator's responsibility for revegetation
requirements under section 1513.16 of the Revised Code.
(E) The amount of a permittee's performance security may be
adjusted by the chief as the land that is affected by mining increases
or decreases or if the cost of reclamation increases or decreases. If
performance security that was provided in accordance with division
(C)(2) of this section and the chief has issued a failure to abate
cessation order for non-contemporaneous reclamation on a permit, the
chief may require that the performance security provided by the
permittee on said permit be increased from twenty five hundred dollars
per acre of land to the amount of five thousand dollars per acre of
land. The chief shall notify the permittee, each surety, and any person
who has a property interest in the performance security and who has
requested to be notified of any proposed adjustment to the performance
security. The permittee may request an informal conference with the
chief concerning the proposed adjustment, and the chief shall provide
such an informal conference. If the chief increases the amount of
performance security under this division, the permittee shall provide
additional performance security in an amount determined by the chief.
If the chief decreases the amount of performance security under this
division, the chief shall determine the amount of the reduction of the
performance security and send written notice of the amount of reduction
to the permittee. The permittee may reduce the amount of the
performance security in the amount determined by the chief.
(F) A permittee may request a reduction in the amount of the
performance security by submitting to the chief documentation proving
that the amount of the performance security provided by the permittee
exceeds the estimated cost of reclamation if the reclamation would have
to be performed by the division in the event of forfeiture of the
performance security. The chief shall examine the documentation and
determine whether the permittee's performance security exceeds the
estimated cost of reclamation. If the chief determines that the
performance security exceeds that estimated cost, the chief shall
determine the amount of the reduction of the performance security and
send written notice of the amount to the permittee. The permittee may
reduce the amount of the performance security in the amount determined
by the chief. Adjustments in the amount of performance security under
this division shall not be considered release of performance security
and are not subject to section 1513.16 of the Revised Code.
(G) If the performance security is a bond, it shall be executed by
the operator and a surety licensed to do business in this state. If the
performance security is a cash deposit or negotiable certificates of
deposit of a bank or savings and loan association, the bank or savings
and loan association shall be licensed and operating in this state. The
cash deposit or market value of the securities shall be equal to or
greater than the amount of the performance security required under this
section. The chief shall review the performance security document and
approve or disapprove the document. The chief shall notify the
applicant of the chief's determination.
(H) If the performance security is a bond, the chief may accept the
bond of the applicant itself without separate surety when the applicant
demonstrates to the satisfaction of the chief the existence of a
suitable agent to receive service of process and a history of financial
solvency and continuous operation sufficient for authorization to self-
insure or bond the amount.
(I) Performance security provided under this section may be held in
trust, provided that the state is the conditional 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 this state. The chief shall review the trust document
and approve or disapprove the document. The chief shall notify the
applicant of the chief's determination.
(J) If a surety, bank, savings and loan association, trust company,
or other financial institution that holds the performance security
required under this section becomes insolvent, the permittee shall
notify the chief of the insolvency, and the chief shall order the
permittee to submit a plan for replacement performance security within
thirty days after receipt of notice from the chief. If the permittee
provided performance security in accordance with division (C)(1) of
this section, the permittee shall provide the replacement performance
security within ninety days after receipt of notice from the chief. If
the permittee provided performance security in accordance with division
(C)(2) of this section, the permittee shall provide the replacement
performance security within one year after receipt of notice from the
chief, and, for a period of one year after the permittee's receipt of
notice from the chief or until the permittee provides the replacement
performance security, whichever occurs first, money in the reclamation
forfeiture fund shall be the permittee's replacement performance
security in an amount not to exceed the estimated cost of reclamation
as determined by the chief.
(K) A permittee's responsibility for repairing material damage
resulting from subsidence, including replacement of water supplies, may
be satisfied by utilizing appropriate terms and conditions for
liability insurance required under this Chapter in lieu of the
permittee's performance security to assure the financial responsibility
to comply with this Chapter.
(L) If the performance security otherwise equals or exceeds that
estimated cost of reclamation, the chief may authorize any interest or
other earnings on the performance security provided under this section
be paid to the permittee.
Section 1513.081 is new and provides as follows:
Sec. 1513.081. If an operator becomes insolvent, the division of
mineral resources management shall have a priority lien in front of all
other interested creditors against the assets of that operator for the
amount of any reclamation that is required as a result of the
operator's mining activities. The chief of the division of mineral
resources management shall file a statement in the office of the county
recorder of each county in which the mined land lies of the estimated
cost to reclaim the land. Estimated costs shall include direct and
indirect costs of the development, design, construction, management,
and administration of the reclamation. The statement shall constitute a
lien on the assets of the operator as of the date of the filing. The
lien shall continue in force so long as any portion of the lien remains
unpaid or until the chief issues a certificate of release of the lien.
If the chief issues a certificate of release of the lien, the chief
shall file a certificate of release in the office of each applicable
county recorder.
(B) The chief promptly shall issue a certificate of release under
any of the following circumstances:
(1) Upon the repayment in full of the money that is necessary to
complete the reclamation;
(2) Upon the transfer of an existing permit that includes the areas
of the surface mine for which reclamation was not completed.
(3) Any other circumstances that the chief determines to be in the
best interests of the state.
[[Page 7483]]
(C) The chief may modify the amount of a lien under this section.
If the chief modifies a lien, the chief shall file a statement in the
office of the county recorder of each applicable county of the new
amount of the lien. However, the chief shall not extinguish a lien
under this section until the required reclamation is completed and the
chief issues a certificate approving the reclamation.
(D) The chief may authorize a closing agent to hold a certificate
of release in escrow for a period not to exceed one hundred eighty days
for the purpose of facilitating the transfer of unreclaimed mine land.
(E) All money from the collection of liens under this section shall
be deposited in the state treasury to the credit of the reclamation
forfeiture fund created in section 1513.18 of the Revised Code.
Section 1513.16(A)(15)(d) is amended by deleting the word ``bond''
and adding in its place the words ``performance security.''
Section 1513.16(A)(21)(b) is amended by deleting the word
``bonded'' in the first sentence. In addition, the first sentence is
amended by adding the words ``for which performance security has been
applied'' at the end of the sentence.
Section 1513.16(F)(1) has been amended in the first sentence by
deleting the words ``bond or deposit'' and replacing those words with
the word ``security.'' In the second sentence, the words ``bond or
deposit'' are deleted and replaced by the words ``performance
security.'' In the third sentence, the word ``bond'' is deleted in two
locations and replaced with the words ``performance security.'' In the
fourth and fifth sentences, the words ``bond'' are deleted and replaced
with the words ``performance security.''
Section 1513.16(F)(2) is amended in the first sentence by deleting
the words ``bond or deposit'' and replacing those words with the words
``performance security.'' In the last sentence, the words ``bond or
deposit'' are deleted and replaced by the word ``security.''
Section 1513.16(F)(3) is amended by deleting the words ``bond or
deposit'' and replacing those words with the words ``performance
security.''
Section 1513.16(F)(3)(a) is amended by deleting the words ``a
bonded'' and replacing those words with the word ``an.'' In addition,
the words ``for which performance security has been provided'' have
been added immediately before the words ``in accordance with the
approved reclamation plan.'' Also, the words ``bond or deposit'' are
deleted in two places and replaced with the words ``performance
security.''
Section 1513.16(F)(3)(b) is amended by deleting the words ``bond or
deposit'' and ``bond'' in several locations and replacing those words
with the words ``performance security.''
Section 1513.16(F)(3)(c) is amended by deleting the words ``bond''
in several locations and replacing that word with the words
``performance security'' or ``security.''
Sections 1513.16(F)(4) through (F)(7) are amended by deleting the
words ``bond or deposit'' and ``bond'' in several locations and
replacing those words with the words ``performance security'' or
``security.''
Sections 1513.16(F)(8) and (F)(9) are new and provide as follows:
(8)(a) Except as provided in division (F)(8)(c) of this section, if
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 that a permittee must provide an alternative
water supply after reclamation is completed under the terms of the
permit, the permittee shall provide alternative financial security in
an amount determined by the chief prior to the release of the remaining
portion of performance security under division (F)(3)(c) of this
section. The alternative financial security shall be in an amount that
is equal to or greater than the present value of the estimated cost
over time to develop and implement mine drainage plans and provide
water treatment or in an amount that is necessary to provide and
maintain an alternative water supply, as applicable. The alternative
financial security shall include a contract, trust, or other agreement
or mechanism that is enforceable under law to provide long-term water
treatment or a long-term alternative water supply, or both.
(b) The chief shall adopt rules in accordance with Chapter 119. of
the Revised Code that are necessary for the administration of division
(F)(8)(a) of this section.
(c) Division (F)(8)(a) of this section does not apply while the
chief's determination of a permittee's responsibility under that
division is the subject of a good faith administrative or judicial
appeal contesting the validity of the determination. If after
completion of the appeal there is an enforceable administrative or
judicial decision affirming or modifying the chief's determination, the
permittee shall provide the alternative financial security in an amount
established in the administrative or judicial decision.
(9) Final release of the performance security in accordance with
division (F)(3)(c) of this section terminates the jurisdiction of the
chief under this chapter over the reclaimed site of a surface coal
mining and reclamation operation or applicable portion of an operation.
The chief may reassert jurisdiction over such a site only if the chief
demonstrates in writing with evidence that the release was based on
fraud, collusion, or misrepresentation of a material fact. Any person
with an interest that is or may be adversely affected by the chief's
determination may appeal the determination to the reclamation
commission in accordance with section 1513.13 of the Revised Code.
Section 1513.16(G) is amended by deleting the word ``bond'' and
replacing that word with the words ``performance security.''
Section 1513.17(A)(6) is amended by deleting the word ``bond'' and
replacing that word with the words ``performance security.''
Section 1513.171 is new and provides as follows:
Sec. 1513.171. (A) For the purpose of claiming a credit under
section 5749.11 of the Revised Code, an operator with a valid permit
issued under section 1513.07 of the Revised Code may submit an
application to the chief of the division of mineral resources
management to perform reclamation on land or water resources that are
not within the area of the applicant's permit and that have been
adversely affected by past coal mining where the performance security
was forfeited. The chief shall provide the application form. The
application shall include all of the following:
(1) The operator's name, address, and telephone number;
(2) The valid permit number of the operator;
(3) An identification of the area or areas to be reclaimed;
(4) An identification of the owner of the land;
(5) A reclamation plan that describes the work to be done to
reclaim the land or water resources. The plan shall include a
description of how the plan is consistent with local physical,
environmental, and climatological conditions and the measures to be
taken during the reclamation to ensure the protection of water systems.
(6) An estimate of the total cost of the reclamation;
(7) An estimate of the timetables for accomplishing the
reclamation;
(8) Any other requirements that the chief prescribes by rule. The
chief shall approve, disapprove, or approve the
[[Page 7484]]
application with modifications concerning the proposed reclamation
work. If the chief approves the application, the applicant may commence
reclamation in accordance with the timetables included in the
application. Upon the completion of the reclamation to the satisfaction
of the chief, the chief shall issue a numbered reclamation tax credit
certificate showing the amount of the credit and the identity of the
recipient.
(B) The chief shall determine the amount of the credit in
accordance wit[h] this section and rules adopted under it. The amount
of the credit shall be equal to the cost that the division of mineral
resource management would have expended from the reclamation forfeiture
fund created in section 1513.18 of the Revised Code to complete the
reclamation.
(C) The chief shall adopt rules in accordance with Chapter 119. of
the Revised Code that are necessary to administer this section. The
rules shall establish all of the following:
(1) A procedure that the chief shall use to determine the amount of
the credit issued under this section;
(2) A procedure by which the chief may obtain consent of the owners
of land or water resources to allow reclamation work for purposes of
this section;
(3) A procedure for delivery of notice to the owners of land or
water resources on which the reclamation work is to be performed. The
rules shall require the notice to include the date on which the
reclamation work is scheduled to begin.
Section 1513.18(B) is revised by deleting the following words in
the first sentence: ``moneys transferred to it under this division from
the unreclaimed lands fund created in section 1513.30 of the Revised
Code, any.'' The first sentence is also revised by adding the following
words following the phrase ``reserve fund created in that section:''
``investment earnings of the fund, fines collected under 1513.181.''
Additionally, the last sentence in the first paragraph is deleted.
Finally, the last paragraph is deleted. As revised, section 1513.18(B)
provides as follows:
(B) The fund shall consist of any moneys transferred to it under
section 1513.181 [1513.18.1] of the Revised Code from the coal mining
and reclamation reserve fund created in that section, investment
earnings of the fund, fines collected under 1513.181 and moneys
collected and reedited to it pursuant to section 5749.02 of the Revised
Code. Disbursements from the fund shall be made by the chief for the
purpose of reclaiming areas that an operator has affected by mining and
failed to reclaim under a coal mining and reclamation permit issued
under this chapter or under a surface mining permit issued under
Chapter 1514. of the Revised Code.
The chief may expend moneys from the fund to pay necessary
administrative costs, including engineering and design services,
incurred by the division of mineral resources management in reclaiming
these areas. Expenditures from the fund to pay such administrative
costs need not be made under contract.
Section 1513.18(C) is revised in the last sentence by adding the
words ``or trustee, if the performance security is held in trust''
between the words ``hired by the surety'' and the words ``to complete
reclamation.''
Section 1513.18(D) is revised by deleting some language and adding
a lot of new language to provide as follows:
(D) The chief shall expend money credited to the reclamation
forfeiture fund from the forfeiture of the performance security
applicable to an area of land to pay for the cost of the reclamation of
the land. If the performance security for the area of land was provided
under division (C)(1) of section 1513.08 of the Revised Code, the chief
shall use the money from the forfeited performance security to complete
the reclamation that the operator failed to do under the operator's
applicable coal mining and reclamation permit issued under this
chapter. If the performance security for the area of land was provided
under division (C)(2) of section 1513.08 of the Revised Code, the chief
shall use the money from the forfeited performance security to complete
the reclamation that the operator failed to do under the operator's
applicable coal mining and reclamation permit issued under this
chapter. However, if the money credited to the reclamation forfeiture
fund from the forfeiture of the performance security provided under
division (C)(2) of section 1513.08 of the Revised Code is not
sufficient to complete the reclamation, the chief may expend money
credited to the reclamation forfeiture fund under section 5749.02 of
the Revised Code or transferred to the fund under section 1513.181 of
the Revised Code to complete the reclamation. The chief shall not
expend money from the fund in an amount that exceeds the difference
between the amount of the performance security provided under division
(C)(2) of section 1513.08 of the Revised Code and the estimated cost of
reclamation as determined by the chief under division (B) of that
section.
Money from the reclamation forfeiture fund provided under division
(C)(2) of section 1513.08 of the Revised Code shall not be used for
reclamation of land or water resources affected by material damage from
subsidence, mine drainage that requires extended water treatment after
reclamation is completed under the terms of the permit, or coal
preparation plants or coal refuse disposal areas not located within a
permitted area of a mine.
Section 1513.18(E) is amended in the last sentence by deleting the
word ``bond'' and replacing that word with the words ``performance
security.''
Section 1513.18(H) is new and provides as follows:
(H) The treasurer of the state shall deposit any portion of the
reclamation forfeiture fund not needed for immediate use in the same
manner as and subject to all the laws with respect to the deposit of
state funds by the treasurer of the state. All interest earned by such
portion of the fund as is deposited under this section shall be
collected by the treasurer of the state and placed in the reclamation
forfeiture fund under section 1513.18 of the Revised Code and credited
as performance security under division (C)(2) of section 1513.08 of the
Revised Code.
Section 1513.181 is amended in the first paragraph by adding a new
third sentence to provide as follows: ``All investment earnings of the
coal mining administration and reclamation reserve fund shall be
credited to the fund.'' The fourth sentence (formerly third) is amended
by deleting the following words: ``or by surface mining under a surface
mining permit issued under Chapter 1514. of the Revised Code.''
Additionally, the fourth sentence is amended by deleting the word
``bond'' and replacing that word with the words ``performance
security.'' The second paragraph is amended by deleting the phrase
``coal mining administration and'' and by deleting the word ``reserve''
and adding in its place the word ``forfeiture.'' As amended, section
1513.181 provides as follows:
Sec. 1513.181. There is hereby created in the state treasury the
coal mining administration and reclamation reserve fund. The fund shall
be used for the administration and enforcement of this chapter. All
investment earnings of the coal mining administration and reclamation
reserve fund shall be credited to the fund. The chief of the division
of mineral resources management may transfer not more than one million
dollars annually from the fund to the reclamation forfeiture fund
created in section 1513.18 of the
[[Page 7485]]
Revised Code to complete reclamation of lands affected by coal mining
under a permit issued under this chapter, that the operator failed to
reclaim and for which the operator's performance security is
insufficient to complete the reclamation. Within ten days before or
after the beginning of each calendar quarter, the chief may certify to
the director of budget and management the amount of money needed to
perform such reclamation during the quarter for transfer from the coal
mining administration and reclamation reserve fund to the reclamation
forfeiture fund.
Fines collected under division (E) of section 1513.02 and section
1513.99 of the Revised Code, and fines collected for a violation of
section 2921.31 of the Revised Code that, prior to July 1, 1996, would
have been a violation of division (G) of section 1513.17 of the Revised
Code as it existed prior to that date, shall be paid into the
reclamation forfeiture fund.
Section 1513.182 is new and provides as follows:
Sec. 1513.182. (A) There is hereby created the reclamation
forfeiture fund advisory board consisting of five members. The Director
of the Department of Natural Resources and the Director of the
Department of Insurance shall be members. The governor shall appoint
the remaining three members with the advice and consent of the senate.
One member shall be a certified public accountant and two members shall
be representatives of permittee's with permits covered by performance
security provided in accordance with Section 1513.08(C)(2) of the
Revised Code.
Of the three members originally appointed by the governor pursuant
to this section, one shall serve an initial term of two years, one an
initial term of three years, and one an initial term of four years.
Thereafter, terms of office of the three members shall be for four
years, each term ending on the same date as the original date of
appointment. Any member appointed to fill a vacancy occurring prior to
the expiration of the term for which his predecessor was appointed
shall hold office for the remainder of such term. Any member shall
continue in office subsequent to the expiration date of his term until
his successor takes office, or until a period of sixty days has
elapsed, whichever occurs first. A vacancy in an unexpired term shall
be filled in the same manner as the original appointment. The Governor
may remove any member pursuant to sections 3.04 and 3.05 of the Revised
Code.
Board members representing the Department of Natural Resources and
the Department of Insurance shall receive no compensation, but shall be
reimbursed for actual and necessary expenses in the performance of
their duties. The three remaining members of the board shall receive
per diem compensation fixed pursuant to division (J) of section 124.15
of the Revised Code and actual and necessary expenses incurred in the
performance of their duties.
For administrative purposes, the board is a part of the Department
of Natural Resources.
(B) The Board shall annually elect from among its members a
chairperson, a vice-chairperson, and a secretary to keep a record of
its proceedings;
(C) The Board shall hold meetings as necessary at the call of the
chairperson or a majority of the members.
(D) The Board shall adopt rules and procedures by which it shall
elect a chairperson, vice-chair person, and secretary, and establish
procedures for conduct of meetings.
(E) The Board shall:
(1) Review, in accordance with the applicable rules and
regulations, collections and payments to and expenditures from the
reclamation forfeiture fund;
(2) Authorize expenditures from the reclamation forfeiture fund
necessary to carry out the responsibilities of the Board and the
reclamation of land or water resources that have been adversely
affected by past coal mining where the performance security was
forfeited;
(3) Periodically employ a qualified actuary to perform an actuarial
study of the reclamation forfeiture fund;
(4) Evaluate bond forfeiture collection, payments to the
reclamation forfeiture fund, reclamation efforts at forfeiture sites,
and compliance with reclamation plans;
(5) Provide a forum for discussion of issues relative to the
reclamation forfeiture fund;
(6) Determine, based upon an actuarial study, the minimum and
maximum amounts of the reclamation forfeiture fund and adjustments to
the tax on the severance of coal that is levied under division (A)(8)
of section 5749.02 of the Revised Code;
(7) Report to the Governor and the Joint Committee on Agency Rule
Review (``JCARR'') no less than biennially as to the financial status
and adequacy of the reclamation forfeiture fund;
(8) Make recommendations to the Governor and the Joint Committee on
Agency Rule Review (``JCARR'') on alternative approaches and
modifications to the reclamation forfeiture fund, the tax on severance
of coal that is levied under division (A)(8) of section 5749.02 of the
Revised Code, and the reclamation of land or water resources that have
been adversely affected by past coal mining where the performance
security was forfeited;
(9) Adopt, amend, and rescind rules for implementing, adjusting,
collecting, and administering the tax imposed under section
5749.02(A)(8) of the Revised Code. The adoption, amendment, and
rescission of rules under divisions (E)(9) of this section are subject
to Chapter 119 of the Revised Code.
Section 1513.29 is amended in the third paragraph by combining the
first and second sentences by deleting the words ``at least four
regular quarterly meetings each year'' at the end of the first
sentence, and deleting the word ``Special'' at the beginning of the
second sentence. Additionally, the words ``may be held'' are deleted
and the words ``as necessary'' are added in place of the deleted words.
As amended, the third paragraph provides as follows:
The council shall hold meetings as necessary at the call of the
chairperson or a majority of the members. The council shall annually
elect from among its members a chairperson, a vice-chairperson, and a
secretary to keep a record of its proceedings.
The fourth paragraph is amended by deleting the words ``strip
mining'' before the word ``reclamation''; adding the word
``forfeiture'' after the word ``reclamation''; and by adding the phrase
``created in section 1513.18 of the Revised Code.'' As amended, the
fourth paragraph provides as follows:
The council shall gather information, study, and make
recommendations concerning the number of acres, location, ownership,
condition, environmental damage resulting from the condition, cost of
acquiring, reclaiming, and possible future uses and value of eroded
lands within the state, including land affected by strip mining for
which no cash is held in the reclamation forfeiture fund created in
section 1513.18 of the Revised Code.
The fifth paragraph is amended by deleting the phrase ``of the
division of mineral resources management'' from the last sentence. As
amended, the last sentence provides as follows: ``Expenses incurred by
the council and compensation provided under this section shall be paid
by the chief from the unreclaimed lands fund created in section 1513.30
of the Revised Code.''
Section 1513.30 is amended by adding a new last sentence to the end
of the first paragraph to read as follows: ``All investment earnings of
the
[[Page 7486]]
unreclaimed lands fund shall be credited to the fund.''
Section 1513.30(B) is amended by deleting the second paragraph
(starting with the words ``At least two weeks'') and the fourth
paragraph (starting with the words ``The controlling board'').
Section 1513.37(C)(1)(b) is amended by adding the words
``performance security'' between the word ``bond'' and the words ``or
other form.''
Section 1513.37(C)(3) is amended by adding the phrase ``performance
security, or other form of financial guarantee'' in four locations. As
amended, section 1513.37(C)(3) provides as follows:
(3) Surface coal mining operations on lands eligible for remining
shall not affect the eligibility of those lands for reclamation and
restoration under this section after the release of the bond,
performance security, or other form of financial guarantee for any such
operation as provided under division (F) of section 1513.16 of the
Revised Code. If the bond, performance security, or other form of
financial guarantee for a surface coal mining operation on lands
eligible for remining is forfeited, moneys available under this section
may be used if the amount of the bond, performance security, or other
form of financial guarantee for a surface coal mining operation on
lands eligible for remining is forfeited, moneys available under this
section may be used if the amount of the bond, performance security, or
other form of financial guarantee is not sufficient to provide for
adequate reclamation or abatement, except that if conditions warrant,
the chief immediately shall exercise the authority granted under
division (L) of this section.
Section 1513.371 is new and provides as follows:
Sec. 1513.371 There is hereby created in the state treasury the
mined land set aside fund consisting of grants made by the United
States secretary of the interior from the Federal abandoned mine
reclamation fund pursuant to section 402(g)(6)(A), 30 U.S.C.
1232(g)(6)(A), of the ``Surface Mining Control and Reclamation Act of
1977.'' 91 Stat. 445, 30 U.S.C. 1201. The chief of the division of
mineral resources management shall administer the mined land set aside
fund. Money in the fund shall be used solely to accomplish the purposes
and priorities established in divisions (B)(1) to (4) of section
1513.37 of the Revised Code. All investment earnings of the mined land
set aside fund shall be credited to the fund.
Section 1561.03 is amended by adding a new second paragraph to
provide as follows:
For the purpose of establishing standards governing surface coal
mines and surface work areas of underground coal mines, the chief shall
incorporate by reference 30 CFR parts 47, 48, 50, 62, 71, 72, and 77,
as amended.
Section 1567.35(E) is amended by deleting the word ``worker's'' and
adding in its place the word ``worker.''
Section 1567.35(I) is amended by deleting the word ``such'' and
adding the word ``the'' in its place. In addition, a new second
paragraph is added to provide as follows:
Nothing in this section shall be construed to prohibit or impede
the use of diesel equipment in an underground coal mine, approved for
such use in accordance with Federal law.
Section 5749.02(A)(1) is amended by changing ``Seven cents per ton
of coal'' to ``Ten cents per ton of coal.''
Section 5749.02(A)(8) is new and provides as follows:
(8) An additional Fourteen cents per ton of coal produced from an
area under a coal mining and reclamation permit issued under Chapter
1513 of the Revised Code for which the performance security is provided
under division (C)(2) of section 1513.08 of the Revised Code. Provided
however, that:
(a) When at the end of any fiscal biennium, the balance in the
reclamation forfeiture fund under section 1513.18 of the Revised Code
reaches the maximum amount of ten million dollars ($10,000,000), the
tax imposed by this section shall be reduced to Twelve cents per ton,
until the balance in the reclamation forfeiture fund at the end of a
subsequent fiscal biennium decreases to five million dollars
($5,000,000), at which point the tax imposed by this section shall be
restored to Fourteen cents per ton;
(b) When at the end of any fiscal biennium, the balance in the
reclamation forfeiture fund under section 1513.18 of the Revised Code
is below the minimum amount of five million dollars ($5,000,000), the
tax imposed by this section shall be increased to Sixteen cents per
ton, until the balance in the reclamation forfeiture fund at the end of
a subsequent fiscal biennium increases to five million dollars
($5,000,000), at which point the tax imposed by this section shall be
restored to Fourteen cents per ton;
(c) If an actuarial study performed pursuant to section 1513.182(E)
of the Revised Code indicates that the minimum amount necessary to
operate a[n] actuarially sound reclamation forfeiture fund differs from
five million dollars ($5,000,000), then the minimum and maximum amounts
of the fund as provided in divisions (a) and (b) of this section shall
automatically be adjusted to conform to the actuarial study.
(d) The reclamation forfeiture fund advisory board, established
under section 1513.182 of the Revised Code, shall have authority to
adopt, amend, and rescind rules for adjusting, collecting, and
administering the tax imposed under this division (A)(8) of this
section, including increasing or decreasing the amount of tax imposed
based upon the fiscal year ending balance in the reclamation forfeiture
fund under section 1513.18 of the Revised Code, an actuarial study
performed pursuant to section 1513.182(E) of the Revised Code, and the
fiscal requirements of the reclamation forfeiture fund to ensure
sufficient revenues to provide adequate funds on an actuarial basis to
provide performance security under division (C)(2) of section 1513.08
of the Revised Code. The adoption, amendment, and rescission of rules
under divisions (A)(8) of this section are subject to Chapter 119 of
the Revised Code.
Section 5749.02(B) is amended in the first sentence by deleting the
phrase ``six and three tenths'' and adding in its place the word
``five.'' In the first sentence, the following words are deleted,
``fourteen and two tenths per cent shall be credited to the reclamation
forfeiture fund created in section 1513.18 of the Revised Code, fifty
seven and nine tenths'' and replaced by the words ``eighty-five.'' Also
in the first sentence, the words ``the remainder'' are deleted and
replaced by the words ``ten per cent.'' The existing second sentence
(starting with the words ``When, at any time'') is deleted. The second
paragraph is amended by adding the words ``created in section 1513.30
of the Revised Code'' at the end of the sentence. Finally, a new
paragraph is added at the end of section 5749.02(B). As amended,
section 5749.02(B) provides as follows:
(B) Of the moneys received by the treasurer of state from the tax
levied in division (A)(1) of this section, five per cent shall be
credited to the geological mapping fund created in section 1505.09 of
the Revised Code eighty-five per cent shall be credited to the coal
mining administration and reclamation reserve fund created in section
1513.181 of the Revised Code, and ten per cent shall be credited to the
unreclaimed lands fund created in section 1513.30 of the Revised Code.
Fifteen per cent of the moneys received by the treasurer of state
from the tax levied in division (A)(2) of this section shall be
credited to the geological mapping fund and the remainder shall be
credited to the
[[Page 7487]]
unreclaimed lands fund created in section 1513.30 of the Revised Code.
Of the moneys received by the treasurer of state from the tax
levied in divisions (A)(3) and (4) of this section, seven and five-
tenths per cent shall be credited to the geological mapping fund,
forty-two and five-tenths per cent shall be credited to the unreclaimed
lands fund, and the remainder shall be credited to the surface mining
fund created in section 1514.06 of the Revised Code.
Of the moneys received by the treasurer of state from the tax
levied in divisions (A)(5) and (6) of this section, ninety per cent
shall be credited to the oil and gas well fund created in section
1509.02 of the Revised Code and ten per cent shall be credited to the
geological mapping fund. All of the moneys received by the treasurer of
state from the tax levied in division (A)(7) of this section shall be
credited to the surface mining fund.
Of the moneys received by the treasurer of state from the tax
levied in division (A)(8) of this section, one-hundred percent shall be
credited to the reclamation forfeiture fund created in section 1513.18
of the Revised Code.
Section 5749.02(C) is amended by deleting the existing language and
incorporating the language of subsection (D) that is not deleted.
Section 5749.02(D) is amended by deleting the first paragraph. In
the second paragraph, the first sentence is amended by deleting the
word ``this'' immediately before the word ``division,'' and by adding
the phrase ``(A)(8) of this section'' immediately after the word
``division.'' Also, the first sentence is amended by deleting the word
``such,'' adding the phrase ``for which the performance security is
provided under division (C)(2) of section 1513.08 of the Revised
Code,'' deleting the word ``this,'' and adding the words ``(A)(8) of
this section.'' The second sentence in the existing second paragraph is
amended by adding the words ``levied under division (A)(8)'' and by
adding the following to the end of the sentence: ``on coal produced
from an area under a coal mining and reclamation permit issued under
Chapter 1513. of the Revised Code if the permittee has made tax
payments under division (A)(8) of this section during each of the
preceding five full calendar years.'' Finally, the existing designation
``(D)'' is deleted, so that its language is incorporated into
subsection 5749.02(C). As amended, new subsection 5749.02(C) provides
as follows:
(C) When, at the close of any fiscal year, the chief finds that the
balance of the reclamation forfeiture fund, plus estimated transfers to
it from the coal mining and reclamation reserve fund under section
1513.181 [1513.18.1] of the Revised Code, plus the estimated revenues
from the tax levied by division (A)(8) of this section for the
remainder of the calendar year that includes the close of the fiscal
year, are sufficient to complete the reclamation of lands for which the
performance security is provided under division (C)(2) of section
1513.08 of the Revised Code, the purposes for which the tax under
division (A)(8) of this section is levied shall be deemed accomplished
at the end of that calendar year. The chief, within thirty days after
the close of the fiscal year, shall certify those findings to the tax
commissioner, and the tax levied under division (A)(8) of this section
shall cease to be imposed after the last day of that calendar year on
coal produced from an area under a coal mining and reclamation permit
issued under Chapter 1513. of the Revised Code if the permittee has
made tax payments under division (A)(8) of this section during each of
the preceding five full calendar years.
Section 5749.11 is new and provides as follows:
Sec. 5749.11. (A) There is hereby allowed a nonrefundable credit
against the taxes imposed under divisions (A)(1), (C), and (D) of
section 5749.02 of the Revised Code for any severer to which a
reclamation tax credit certificate is issued under section 1513.171 of
the Revised Code. The credit shall be claimed in the amount shown on
the certificate. The credit shall be claimed by deducting the amount of
the credit from the amount of the first tax payment due under section
5749.06 of the Revised Code after the certificate is issued. If a
certificate is transferred under division (B) of this section, the
credit shall be claimed by the transferee by deducting the amount of
the credit from the amount of the transferee's first tax payment due
after the certificate is transferred.
If the amount of the credit shown on a certificate exceeds the
amount of the tax otherwise due with that first payment, the excess
shall be claimed against the amount of tax otherwise due on succeeding
payment dates until the entire credit amount has been deducted. The
total amount of credit claimed against payments shall not exceed the
total amount of credit shown on the certificate.
(B) A severer receiving a reclamation tax credit certificate issued
under section 1513.171 of the Revised Code may transfer the certificate
to any other severer that is subject to taxation under division (A)(1),
(C), or (D) of section 5749.02 of the Revised Code and holds a license
or permit issued under or referred to in section 5749.04 of the Revised
Code. The transferee of a certificate may transfer the certificate to
any other severer that is subject to such taxes and holds such a
license or permit. A transfer of a certificate shall be made before the
due date of the transferor's first tax payment occurring after the
certificate is received by the transferor pursuant to issuance of the
certificate by the chief of the division of mineral resources
management in the department of natural resources or pursuant to a
prior transfer.
Transfers may be made for consideration or pursuant to terms agreed
to by the transferor and transferee. If the severer transfers a
certificate, the severer shall provide to the tax commissioner written
notification of the transfer in the form or manner prescribed by the
tax commissioner. The notification shall include, at a minimum, the
identity of the severer and the number of the certificate issued by the
chief of the division of mineral resources management under section
1513.171 of the Revised Code. The tax commissioner shall maintain a
record of all transfers of which the commissioner is notified.
(C) A severer claiming a credit under this section shall retain a
reclamation tax credit certificate for not less than four years
following the date of the last tax payment against which the credit
allowed under that certificate was applied. Severers shall make tax
credit certificates available for inspection by the tax commissioner
upon the tax commissioner's request.
Section 2 of the amendment submittal provides as follows:
Section 2. That existing sections 303.211, 519.211, 1513.01,
1513.02, 1513.07, 1513.071, 1513.08, 1513.13, 1513.16, 1513.17,
1513.18, 1513.181, 1513.29, 1513.30, 1513.37, 1567.35, and 5749.02 of
the Revised Code are hereby repealed.
Section 3 of the amendment submittal provides as follows:
Section 3. It is the intent of the General Assembly to appropriate
five million dollars for the reclamation of land affected by the
surface mining of coal.
Section 4 of the amendment submittal provides as follows:
Section 4. It is the intent of the General Assembly that a portion
of the funds appropriated pursuant to this section be used to complete
a management study of the financial resources of the coal regulatory
program of the Division of Mineral Resources Management within the
Department of
[[Page 7488]]
Natural Resources. The Chief of the Division of Mineral Resources
Management shall, in consultation with a trade group representing the
coal mining industry and a state-wide non-governmental environmental
organization, shall develop the parameters for the management study.
The cost of the study shall not exceed $50,000.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the program.
Written Comments
Send your written comments to OSM at the address given above. Your
written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of
your recommendations. We may not consider or respond to your comments
when developing the final rule if they are received after the close of
the comment period (see DATES). We will make every attempt to log all
comments into the administrative record, but comments delivered to an
address other than the Appalachian Region office identified above may
not be logged in.
Electronic Comments
Please submit Internet comments as an ASCII file avoiding the use
of special characters and any form of encryption. Please also include
``Attn: SATS No. OH-250-FOR,'' your name and return address in your
Internet message. If you do not receive a confirmation that we have
received your Internet message, contact the Appalachian Region office
at (412) 937-2153.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public review in their entirety.
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, on
February 28, 2006. If you are disabled and need special 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. If you are disabled and need a special
accommodation to attend a public hearing, contact the person listed
under FOR FURTHER INFORMATION CONTACT.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, 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 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
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.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that, to the
extent allowable by law, this rule meets the applicable standards of
subsections (a) and (b) of that section. However, these standards are
not applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR parts 730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires
that State programs contain rules and regulations ``consistent with''
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
The basis for this determination is that our decision is on a State
regulatory program and does not involve a Federal program involving
Indian lands.
[[Page 7489]]
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed State regulatory program provision does not
constitute a major Federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, geographic regions, or Federal, State or local governmental
agencies; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation was not considered a
major rule.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 935
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 3, 2006.
Brent Wahlquist,
Regional Director, Appalachian Region.
[FR Doc. E6-1990 Filed 2-10-06; 8:45 am]
BILLING CODE 4310-05-P