03-25056. Ohio Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement (OSM), Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

We are approving 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 proposed revisions to its Ohio Administrative Code (OAC) to incorporate a variety of changes related to the certification of blasters. The amendment is intended to facilitate the certification of blasters in the State's non-coal regulatory program as well as to upgrade the coal surface mining blaster certification program.

EFFECTIVE DATE:

October 3, 2003.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Program Manager, Oversight and Inspection Office, Telephone: [phone], Internet address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Ohio Program

II. Submission of the Proposed Amendment

III. OSM's Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. Procedural Determinations

I. Background on the Ohio Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State 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 10, 1982, Federal Register (47 FR 34688). You can also find later actions concerning Ohio program and program amendments at 30 CFR 935.11, 935.15, and 935.16.

II. Submission of the Proposed Amendment

By letter dated June 11, 2003, Ohio sent us a proposed amendment to its program (Administrative Record Number OH-2183-00) under SMCRA (30 U.S.C. 1201 et seq.). Ohio sent the amendment to include changes made at its own initiative. By electronic mail dated June 18, 2003, Ohio sent us a revised version of the original submittal (Administrative Record Number OH-2183-01).

The provision of the OAC that Ohio proposes to revise is: OAC 1501:13-9-10, concerning training, examination, and certification of blasters. In its original submittal of this amendment, Ohio stated that it has passed legislation extending the requirement for blasting operations to be conducted by a certified blaster to apply to non-coal surface mining as well as coal surface mining. Therefore, Ohio is now proposing to extend OAC Section 1501:13-9-10 to also apply to non-coal surface mining as well as coal surface mining. Ohio is also proposing other amendments to OAC 1501:13-9-10. The specific amendments to OAC 1501:13-9-10 are identified below.

We announced receipt of the proposed amendment in the July 21, 2003, Federal Register (68 FR 43063). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendments adequacy. The public comment period ended August 20, 2003. We did not hold a public hearing or meeting as no one requested one. We did not receive any comments.

III. OSM's Findings

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes and changes with no corresponding Federal regulations.

Ohio proposed minor changes to wording, editorial, punctuation, grammatical, recodification, and changes with no corresponding Federal regulations to the following previously approved regulations that implement provisions of the OAC. Ohio proposed these changes at its own initiative in order to improve its blaster certification program.

13-9-10(A), General, is amended at 13-9-10(A)(1) by adding the word “surface” and by adding the phrase “in coal and industrial minerals mines” to the first sentence. As amended, 13-9-10(A)(1) provides as follows:

(1) All surface blasting operations in coal and industrial minerals mines, including surface blasting operations incident to underground mining and blasting operations on coal exploration operations, shall be conducted by a certified blaster who has obtained certification pursuant to the requirements of this rule.

The addition of the word “surface” does not render the provision less effective than the Federal regulations at 30 CFR 816.61(c). There is no Federal counterpart revision governing industrial mineral mines other than coal mines, but the application of this provision to other mineral operations does not render it inconsistent with SMCRA or the Federal regulations.

13-9-10(A), General, is amended by adding new 13-9-10(A)(3) to provide as follows:

(3) The chief may grant reciprocity to any blaster who holds a valid certification issued under any state or federal blaster certification program approved by the U.S. Department of the Interior's Office of Surface Mining. However, to obtain certification under this rule, the blaster must apply for and pass an examination on Ohio blasting regulations pertaining to coal and industrial minerals mines, and meet any other requirement deemed necessary by the chief.

There is no direct Federal counterpart to this state provision. However, because all State coal mining regulatory programs are subject to the same minimum Federal standards under SMCRA and the Federal regulations, we find that this provision does not render the Ohio program less effective than the Federal regulations concerning the training, examination and certification of blasters at 30 CFR Part 850.

13-9-10(B), Training, is amended by deleting the word “coal” immediately before the words “mining operations” in the first sentence. As amended, the sentence provides that “[t]he chief shall conduct workshops, as necessary, to inform blasters of changes in blasting rules and certification procedures, and shall ensure that courses are available to train persons responsible for the use of explosives in mining operations.” The effect of this deletion is to make this requirement applicable to all mineral mining operations, rather than just coal mining operations. There is no Federal counterpart revision governing industrial mineral mines other than coal mines, but the application of this provision to other mineral operations does not render it inconsistent with SMCRA or the Federal regulations.

13-9-10(B)(7), Training, is amended by adding the words “in coal and non-coal surface mines.” As amended, 13-9-10(B)(7) provides as follows: “(7) All federal and state rules applicable to the use of explosives in coal and non-coal surface mines * * *.” There is no federal counterpart revision governing industrial mineral mines other than coal mines, but the application of this provision to other mineral operations does not render it inconsistent with SMCRA or the Federal regulations.

13-9-10(B)(9), Training, is amended by deleting the word “Schedules” and replacing that word with the words “Blast schedules.” The counterpart Federal regulation, at 30 CFR 850.13(a)(9), uses the word “schedules.” However, since 30 CFR Part 850 governs blaster certification, it can be reasonably inferred that “schedules” means “blast schedules.” Therefore, the change made by Ohio does not render its program less effective than the Federal regulations at 30 CFR 850.13(a)(9).

13-9-10(B)(14), Training, is amended by deleting the word “Unpredictable” immediately before the word “hazards,” and replacing that word with the word “Potential.” Because potential hazards could include both predictable and unpredictable ones, the State provision is now arguably broader than its Federal counterpart at 30 CFR 850.13(a)(14), which requires training in “unpredictable” hazards. Thus, the State regulation remains no less effective than its Federal counterpart. In addition, a new item at 13-9-10(B)(14)(e) is added to read as follows: “(e) Toxic gases.” The word “and” is deleted at the end of subdivision (14)(c), and the word “and” is added at the end of subdivision (14)(d). As amended, 13-9-10(B)(14) provides as follows:

(14) Potential hazards, including:

(a) Lightning;

(b) Stray currents;

(c) Radio waves;

(d) Misfires; and

(e) Toxic gases.

The addition of “toxic gases” to the list of potential hazards for which training is required makes the state provision more extensive than its Federal counterpart at 30 CFR 850.13(a)(14). Thus, the State regulation remains no less effective than its Federal counterpart.

13-9-10(C)(1), concerning minimum training for certification, is amended by adding the words “a minimum of 30 hours of” immediately before the word “training.” The word “in” immediately following the word “training” is deleted and replaced with the word “covering.” The words “division of reclamation” are deleted and are replaced with the word “chief.” As amended, 13-9-10(C)(1) provides as follows:

(1) Received a minimum of 30 hours of training covering all the topics set forth in paragraph (B) of this rule in a course taught under the supervision of the chief, or in a course, or series of courses, deemed equivalent by the chief;

This provision has no direct Federal counterpart, but it is consistent with the Federal regulations pertaining to blaster training, at 30 CFR 850.13.

13-9-10(C)(2), concerning experience required for certification, is amended by deleting most of the existing language and adding language to provide as follows:

(2) Worked on a blasting crew or directly supervised a blasting crew for at least two years in mining, excavation, or an equivalent working environment;

This provision has no direct Federal counterpart, but it is consistent with the experience element of the Federal examination requirements contained in 30 CFR 850.14(a)(2).

13-9-10(C)(3), concerning on-the-job training is new and provides as follows:

(3) Received direction and on-the-job training from a certified blaster;

This provision has no direct Federal counterpart, but it is consistent with the experience element of the Federal examination requirements contained in 30 CFR 850.14(a)(2).

13-9-10(C)(5) ((C)(4) prior to the addition of new (C)(3)), concerning written examination, is amended by correcting a typographical error. The word “if” is deleted and replaced by the word “of.” This is a non-substantive change that requires no discussion.

13-9-10(D)(1), concerning certification, is amended by deleting the words “or a certifying authority designated by the chief,” and replacing those words with the words “or an authorized representative.” The phrase “to accept responsibility for blasting operations” is amended to read “to accept responsibility for surface blasting operations in mines.” The words “under this rule and rule 1501:13-9-06 of the Administrative Code” are deleted. As amended, 13-9-10(D)(1) provides as follows:

(1) The chief, or an authorized representative, shall certify for three years those persons examined and found to be competent and to have the necessary experience to accept responsibility for surface blasting operations in mines.

These changes, which clarify the scope of the certification authority, and also confer that authority upon additional persons, do not render the State's certification provisions less effective than the Federal regulations pertaining to certification at 30 CFR 850.15(a).

13-9-10(D)(2)(b), concerning recertification, is deleted in its entirety and replaced with new language to provide as follows:

(b) Received a minimum of 24 hours of continuing education by attending blasting-related courses, seminars or conferences approved by the chief or an authorized representative, with at least 8 hours obtained from an organization or person other than the blaster's employer or its parent company or explosives supplier.

This provision has no direct Federal counterpart, but it is consistent with the Federal recertification requirements at 30 CFR 850.15(c).

13-9-10(E)(1), concerning conditions of certification, is amended by adding the word “mine” immediately before the words “permit area.” As amended, 13-9-10(E)(1) provides as follows:

(1) A certificate of blaster certification, shall be carried by a blaster, or shall be on file at the mine permit area, during blasting operations.

This provision, though it has no direct Federal counterpart, remains consistent with the Federal regulations at 30 CFR 850.15(e), pertaining to conditions of certification.

13-9-10(E)(2), concerning conditions of certification, is amended by deleting the words “division of reclamation” and adding in their place the word “chief.” As amended, 13-9-10(E)(2) provides as follows:

(2) Upon request by an authorized representative of the chief or other regulatory authority having jurisdiction over the use of explosives, a blaster shall immediately exhibit his or her certificate to the authorized representative.

As amended, this provision remains no less effective than the Federal regulations at 30 CFR 850.15(e)(1), pertaining to conditions of certification.

13-9-10(E)(5), concerning conditions of certification, is amended by deleting the words “and certifying authority designated by the chief.” As amended, 13-9-10(E)(5) provides as follows:

(5) A certified blaster shall take every reasonable precaution to protect his or her certificate from loss, theft, or unauthorized duplication. Any such occurrence shall be reported immediately to the chief.

As amended, this provision remains no less effective than the Federal regulations at 30 CFR 850.15(d), pertaining to protection of certification.

13-9-10(F)(1), concerning suspension and revocation, is amended by deleting the words “or a certifying authority designated by the chief.” As amended, 13-9-10(F)(1) provides as follows:

(1) Following written notice and opportunity for a hearing, the chief may, and upon a finding of willful conduct shall, suspend or revoke the certification of a blaster during the term of the certification, or take other necessary action for any of the following reasons:

As amended, this provision remains no less effective than the Federal regulations at 30 CFR 850.15(b), pertaining to suspension and revocation of blaster certification.

13-9-10(F)(1)(b), concerning suspension and revocation, is amended by adding the words “a blasting-related permit condition” immediately following the words “laws or regulations.” As amended, 13-9-10(F)(1)(b) provides as follows:

(b) Violation of any provision of state or federal explosives laws or regulations, a blasting-related permit condition, or any condition of certification;

The added phrase has no direct Federal counterpart, but it is consistent with the Federal regulations at 30 CFR 850.13(b)(1)(iii), pertaining to suspension and revocation of blaster certification.

13-9-10(F)(1)(f), concerning suspension and revocation, is new and provides as follows:

(f) Conducting a blast where fly rock was cast beyond the permit boundary of any mine.

This provision has no direct Federal counterpart, but it is not inconsistent with the Federal regulations at 30 CFR 816/817.67(c)(3), which prohibit the casting of flyrock beyond the permit boundary, nor is it inconsistent with the Federal regulations at 30 CFR 850.15(b)(1), pertaining to suspension and revocation of blaster certification.

13-9-10(F)(3), concerning suspension and revocation, is amended by deleting the words “or a designated certifying authority,” and adding in their place the words “and may work on a blasting crew only under the direct supervision of a certified blaster.” As amended, 13-9-10(F)(3) provides as follows:

(3) Upon notice of a suspension or revocation, the blaster shall immediately surrender the suspended or revoked certificate and all copies thereof to the chief, and may work on a blasting crew only under the direct supervision of a certified blaster.

These changes do not render the State provision less effective than the Federal regulations at 30 CFR 850.15(b)(3), pertaining to notice of revocation of blaster certification. Also, the added State language is consistent with 30 CFR 850.13(a)(2), which allows persons who are not certified as blasters to work on blasting crews that are under the direction of certified blasters.

13-9-10(F)(4), concerning suspension and revocation, is amended by deleting the phrase “during the term of the suspension,” deleting paragraph (4)(a), paragraph (4)(b) becomes (4)(a); paragraph 4(c) becomes paragraph (4)(b) and then replacing the word “a” with the word “the” at (4)(b), and adding a new paragraph (4)(c). As amended 13-9-10(F)(4) provides as follows:

(4) To repossess a suspended certificate the blaster must:

(a) Exhibit a pattern of conduct consistent with the acceptance of responsibility for blasting operations;

(b) Pass the written examination administered under paragraph (C) of this rule; and

(c) Meet any other requirements imposed by the chief under the terms of the suspension.

These changes have no direct Federal counterpart, but they are not inconsistent with the Federal regulations at 30 CFR 850.15, pertaining to blaster certification. For the foregoing reasons, we are approving this Ohio amendment in its entirety.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment (Administrative Record Number OH-2183-02), but did not receive any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i) and section 503 (b) of SMCRA, we requested comments on the amendment from various Federal agencies with a potential interest in the Ohio program (Administrative Record Number OH-2183-03), but did not receive any.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Ohio proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not request concurrence.

On July 3, 2003, we asked for comments from EPA on the amendment (Administrative Record No. OH-2183-03). The EPA did not respond to our request.

V. OSM's Decision

Based on the above findings, we approve the amendment Ohio sent us on June 11, 2003, and as revised on June 18, 2003.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 935, which codify decisions concerning the Ohio program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

Executive Order 13132—Federalism

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on 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.

Executive Order 13211—Regulations That Significantly Affect The Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the 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 an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 935

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: September 9, 2003.

Brent Wahlquist,

Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 935 is amended as set forth below:

PART 935—OHIO

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

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

2. Section 935.15 is amended in the table by adding a new entry in chronological order by “ Date of final publication” to read as follows:

§ 935.15

Approval of Ohio regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
June 11, 2003	October 3, 2003	OAC 1501:13-9-10 (A)(1), (3), (B), (B)(7), (9), (14), (14)(e), (C)(1), (2), (3), (4), (5), (D)(1), (2)(b), (E)(1), (2), (5), (F)(1), (1)(b), (1)(f), (3), (4), (4)(a), (4)(b), and (4)(c).