[Federal Register Volume 61, Number 183 (Thursday, September 19, 1996)]
[Proposed Rules]
[Pages 49282-49284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23942]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-017-FOR]


Oklahoma Regulatory Program

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

ACTION: Proposed rule; reopening and extension of public comment period 
on proposed amendment.

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SUMMARY: OSM is announcing receipt of revisions pertaining to a 
previously proposed amendment to the Oklahoma regulatory program 
(hereinafter referred to as the ``Oklahoma program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). The revisions for 
Oklahoma's proposed rules pertain to protected activities. The proposed 
amendment is intended to revise the Oklahoma regulations to be 
consistent with the Federal regulations.

DATES: Written comments must be received by 4:00 p.m., c.d.t., October 
4, 1996.

ADDRESSES: Written comments should be mailed or hand delivered to Jack 
R. Carson, Acting Director, Tulsa Field Office at the address listed 
below.
    Copies of the Oklahoma program, the proposed amendment, and all 
written comments received in response to this document will be 
available for public review at the addresses listed below during normal 
business hours, Monday through Friday, excluding holidays. Each 
requester may receive one free copy of the proposed amendment by 
contacting OSM's Tulsa Field Office.

Jack R. Carson, Acting Director, Tulsa Field Office, Office of Surface 
Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470, 
Tulsa, Oklahoma 74135-6547, Telephone: (918) 581-6430.
Oklahoma Department of Mines, 4040 N. Lincoln Blvd., Suite 107, 
Oklahoma City, Oklahoma 73105, Telephone: (405) 521-3859.

FOR FURTHER INFORMATION CONTACT:
Jack R. Carson, Acting Director, Tulsa Field Office, Telephone: (918) 
581-6430.

SUPPLEMENTARY INFORMATION: 

I. Background on the Oklahoma Program
II. Discussion of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Oklahoma Program

    On January 19, 1981, the Secretary of the Interior conditionally 
approved the Oklahoma program. Background information on the Oklahoma 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in the January 
19, 1981, Federal Register (46 FR 4902). Subsequent actions concerning 
the conditions of approval and program amendments can be found at 30 
CFR 936.15 and 936.16.

II. Discussion of the Proposed Amendment

    By letter dated February 21, 1996, (Administrative Record No. OK-
973), Oklahoma submitted a proposed amendment to its program pursuant 
to SMCRA. Oklahoma submitted the proposed amendment at its own 
initiative. The provisions of the Oklahoma regulations that Oklahoma 
proposed to amend were at Oklahoma Administrative Code (OAC) 460:20-15-
7 concerning permit conditions. Specifically, Oklahoma proposed to 
revise OAC 460:20-15-7 by adding a new permit condition at subsection 
(5) concerning protected activity and by renumbering existing 
subsections (5) through (8) to be (6) through (9).
    OSM announced receipt of the proposed amendment in the March 5, 
1996, Federal Register (61 FR 8536) and invited public comment on its 
adequacy. The public comment period ended April 4, 1996.
    During its review of the amendment, OSM identified concerns 
relating to Oklahoma's proposed addition, at OAC 460:20-15-7(5), of a 
new permit condition concerning protected activities. OSM was 
specifically concerned that the existing state enforcement and citizens 
complaint regulations do not contain the procedures necessary to 
implement the requirements of the Federal regulations dealing with 
protected activities at 30 CFR Part 865. OSM notified Oklahoma of the 
concerns by letter dated June 25, 1996 (Administrative Record No. OK-
973.06). Oklahoma responded in a letter dated August 28, 1996, 
(Administrative Record No. OK-973.08) by submitting a revised 
amendment.
    Oklahoma proposed the additions of a new subchapter at OAC 460:20-
16, concerning protection of employees, to replace the changes 
originally proposed for OAC 460:20-15-7.
    Specifically, Oklahoma proposes to add new subchapter 16 concerning 
protection of employees that reads as follows.

460:20-16-1. Scope
This subchapter establishes procedures regarding:
(1) The reporting of acts of discriminatory discharge or other acts 
of discrimination under the Act and this Chapter caused by any 
person. Forms of the discrimination include, but are not limited to:
    (A) Firing,
    (B) suspension,
    (C) transfer or demotion,
    (D) denial or reduction of wages and benefits,
    (E) coercion of promises of benefits or threats of reprisal, and
     (F) interference with the exercise of any rights afforded under 
the Act and this Chapter:
(2) The investigation of applications for review and holding of 
informal conferences about the alleged discrimination; and
(3) The request for formal hearings with the Department's Legal 
Division.
460:20-16-2. Protected activity
(a) No person shall discharge or in any other way discriminate 
against or cause to be fired or discriminated against any employee 
or any authorized representative of employees because that employee 
or representative has:
(1) Filed, instituted or caused to be filed or instituted any 
proceedings under the Act and this chapter by:
    (A) Reporting alleged violations or dangers to the Director, the 
Department of Mines, or the employer or his representative.
    (B) Requesting an inspection or investigation; or
    (C) Taking any other action which may result in a proceeding 
under the Act and this Chapter.
(2) Made statements, testified, or is about to do so:
    (A) In any informal or formal adjudicatory proceedings;
    (B) In any informal conference proceeding;
    (C) In any rulemaking proceeding;
    (D) In any investigation, inspection or other proceeding under 
the Act and this Chapter;
    (E) In any judicial proceeding under the Act and this Chapter.
(3) Has exercised on his own behalf or on behalf of other any right 
granted by the Act and this Chapter.
(b) Each employer conducting operations which are regulated under 
this Act and this Chapter, shall within 30 days from the effective 
day of these regulations, provide a copy of this Subchapter to all 
current employees and to all new employees at the time of their 
hiring.
460:20-16-3. Procedures for filing an application for review of 
discrimination

[[Page 49283]]

(a) Who may file. Any employee, or any authorized representative or 
employees, who believes that he has been discriminated against by 
any person in violation of 460:20-16-2(a) of this subchapter may 
file an application for review. For the purpose of this subchapter, 
an application for review means the presentation of a written report 
of discrimination stating the reasons why the person believes he has 
been discriminated against and the facts surrounding the alleged 
discrimination.
(b) Where to file. The employee or representative may file the 
application for review at any location of the Office and each office 
shall maintain a log of all filing.
(c) Time for filing. The employee or representative shall file an 
application for review within 30 days after the alleged 
discrimination occurs. An application is considered filed:
(1) On the date delivered if delivered to the Office, or
(2) On the date received by the Office.
    (d) Running of the time of filing. The time for filing begins 
when the employee knows or has reason to know of the alleged 
discriminatory activity.
460:20-16-4. Investigation and conference procedures
(a) Within 7 days after receipt of any application for review, the 
Office shall mail a copy of the application for review to the person 
alleged to have caused the discrimination, shall file the 
application for review with the Department's Legal Division and 
shall notify the employee and the alleged discriminating person that 
the Department will investigate the complaint. The alleged 
discriminating person may file a response to the application for 
review within 10 days after he receives the copy of the application 
for review. The response shall specifically admit, deny or explain 
each of the facts alleged in the application unless the alleged 
discriminating person is without knowledge in which case he shall so 
state.
(b) The Department shall initiate an investigation of the alleged 
discrimination with 30 days after receipt of the application for 
review. The Department shall complete the investigation within 60 
days of the date of receipt of the application for review. If 
circumstances surrounding the investigation prevent completion 
within the 60-day period, the Department shall notify the person who 
filed the application for review and the alleged discriminating 
person of the delay, the reason for the delay, and the expected 
completion date for the investigation.
(c) Within 7 days after completion of the investigation the 
Department shall invite the parties to an informal conference to 
discuss the findings and preliminary conclusions of the 
investigation. The purpose of the informal conference is to attempt 
to conciliate the matter. If a complaint is resolved at an informal 
conference, the terms of the agreement will be recorded in a written 
document that will be signed by the alleged discriminating person, 
the employee and the representative of the Department. If the 
Department concludes on the basis of a subsequent investigation that 
any party to the agreement has failed in any material respect to 
comply with the terms of any agreement reached during an informal 
conference, the Department shall take appropriate action to obtain 
compliance with the agreement.
(d) Following the investigation and any informal conference held, 
the Department shall complete a report of investigation which shall 
include a summary of the results of the conference. Copies of this 
report shall be available to the parties in the case.
460:20-16-5. Request for hearing
(a) If the Department determines that a violation of this subchapter 
has probably occurred and was not resolved at an informal 
conference, the Director shall request a formal hearing on the 
employee's behalf before the Hearing Examiner within 10 days of the 
scheduled informal hearing. The parties shall be notified of the 
determination. If the Director declines to request a hearing the 
employee shall be notified within 10 days of the scheduled informal 
conference and informed of his right to request a hearing on his own 
behalf.
(b) The employee may request a formal hearing with the Hearing 
Examiner after 60 days have elapsed from the filing of his 
application.
460:20-16-6. Formal adjudicatory proceedings
(a) Formal adjudication of a complaint filed under this subchapter 
shall be conducted in the Legal Divisions pursuant to this 
Subchapter and OAC 460:2, Rules of Practice and Procedure for the 
Coal Reclamation Act of 1979.
(b) A hearing shall be held as promptly as possible consistent with 
the opportunity for discovery provided for under OAC 460:2.
(c) Upon a finding of violation of 460:20-16-2 of this subchapter, 
the Director shall order the appropriate affirmative relief 
including, but not limited to, the rehiring or reinstatement of the 
employee or representative of employees to his former position with 
compensation. At the request of the employee a sum equal to the 
aggregate amount of all costs and expenses including attorney's fees 
which have been reasonably incurred by the employee for, or in 
connection with, the institution and prosecution of the proceedings 
shall be assessed against the person committing the violation.
(d) On or after 10 days after filing an application for review under 
this subchapter the Director or the employee may seek temporary 
relief with the Legal Division.

III. Public Comment Procedures

    OSM is reopening the comment period on the proposed Oklahoma 
program amendment to provide the public an opportunity to reconsider 
the adequacy of the proposed amendment in light of the additional 
materials submitted. In accordance with the provisions of 30 CFR 
732.17(h), OSM is seeking comments on whether the proposed amendment 
satisfies the applicable program approval criteria of 30 CFR 732.15. If 
the amendment is deemed adequate, it will become part of the Oklahoma 
program.

Written Comments

    Written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of the 
commenter's recommendations. Comments received after the time indicated 
under DATES or at locations other than the Tulsa Field Office will not 
necessarily be considered in the final rulemaking or included in the 
Administrative Record.

IV. Procedural Determinations

Executive Order 12866

    This proposed rule is exempted from review by the Office of 
Management and Budget (OMB) under Executive Order 12866 (Regulatory 
Planning and Review.

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed 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 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.

[[Page 49284]]

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
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 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 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. 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.

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 913

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 11, 1996.
Michael C. Wolfrom,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 96-23942 Filed 9-18-96; 8:45 am]
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