[Federal Register: October 3, 2003 (Volume 68, Number 192)]
[Rules and Regulations]
[Page 57352-57356]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03oc03-14]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[OH-249-FOR]
Ohio Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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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: 412-937-2153, Internet address: grieger@osmre.gov.
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
[[Page 57353]]
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:
[[Page 57354]]
(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.
[[Page 57355]]
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
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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.
0
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:
Sec. 935.15 Approval of Ohio regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date 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).
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[FR Doc. 03-25056 Filed 10-2-03; 8:45 am]
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