[Federal Register Volume 64, Number 187 (Tuesday, September 28, 1999)]
[Rules and Regulations]
[Pages 52230-52232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25188]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-020-FOR]


Oklahoma Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving an amendment to the Oklahoma regulatory 
program (Oklahoma program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). Oklahoma proposed revisions to and 
additions of rules concerning burden of proof in civil penalty 
proceedings, petitions for review of proposed individual civil penalty 
assessments, permit conditions, verification of ownership or control 
application information, review of ownership or control and violation 
information, procedures for challenging ownership or control links 
shown in Applicant Violator System (AVS), and standards for challenging 
ownership or control links and the status of violation. Oklahoma 
intends to revise its program to be consistent with the corresponding 
Federal regulations.

EFFECTIVE DATE: September 28, 1999.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office, Office of Surface Mining, 5100 East Skelly Drive, Suite 
470, Tulsa, Oklahoma 74135-6548. Telephone: (918) 581-6430. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Oklahoma Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Oklahoma Program

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

II. Submission of the Proposed Amendment

    By letter dated September 28, 1998 (Administrative Record No. OK-
982), Oklahoma sent us an amendment to its program under SMCRA. 
Oklahoma proposed to amend the Oklahoma Administrative Code (OAC). 
Oklahoma sent the amendment in response to a letter dated January 6, 
1997 (Administrative Record No. OK-977), that we sent to Oklahoma under 
30 CFR 732.17(c). The amendment also includes changes made at 
Oklahoma's own initiative.
    We announced receipt of the amendment in the October 20, 1998, 
Federal Register (63 FR 55979). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the adequacy of the amendment. The public comment period 
closed on November 19, 1998. Because no one requested a public hearing 
or meeting, we did not hold one.
    During our review of the amendment, we identified concerns relating 
to OAC 460:2-8-8, elements, burden of proof; OAC 460:2-8-9, decision by 
administrative hearing officer; OAC 460:2-8-10, petition for 
discretionary review; OAC 460:20-15-11, verification of ownership and 
control application information; OAC 460:20-15-12, review of ownership 
or control violation information; OAC 460:20-15-13, procedures for 
challenging ownership or control links in AVS; and OAC 460:20-15-14, 
standards for challenging ownership or control links and the status of 
violations. Further, we identified editorial concerns at OAC 460:2-8-
10(f); OAC 460:20-15-11(a)(2)(B); OAC 460:20-15-13(d)(1); OAC 460:20-
15-13(d)(2)(B); OAC 460:20-15-14(b)(1); OAC 460:20-15-14(d). We 
notified Oklahoma of these concerns by faxes dated December 3, 1998 and 
July 14, 1999 (Administrative Record Nos. OK-982.03 and OK-982.06, 
respectively).
    By letters dated June 23, 1999, and July 20, 1999 (Administrative 
Record Nos. OK-982.05 and OK-982.07, respectively), Oklahoma sent us 
revisions to its program amendment. Based upon Oklahoma's revisions to 
its amendment, we reopened the public comment period in the August 10, 
1999 Federal Register (64 FR 43327). The public comment period closed 
on August 25, 1999.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are our findings concerning the amendment.
    Any revisions that we do not discuss below are about minor wording 
changes, or revised cross-references and paragraph notations to reflect 
organizational changes resulting from this amendment.

[[Page 52231]]

A. Revisions to Oklahoma's Rules That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations

    The State rules listed in the table below contain language that is 
the same as or similar to the corresponding sections of the Federal 
regulations. Differences between the State rules and the Federal 
regulations are minor.

------------------------------------------------------------------------
                                                     Federal counterpart
            Topic                  State rule            regulation
------------------------------------------------------------------------
Burden of proof in civil      OAC 460:2-7-6.......  43 CFR 4.1155.
 penalty proceedings.
Petitions for review of       OAC 460:2-8-1         43 CFR 4.1300
 proposed individual civil     through 10.           through 4.1309.
 penalty assessments.
Verification of ownership or  OAC 460:20-15-11....  30 CFR 773.22(a).
 control application
 information.
Review of ownership or        OAC 460:20-15-12....  30 CFR 773.23.
 control and violation
 information.
Procedures for challenging    OAC 460:20-15-13....  30 CFR 773.24.
 ownership or control links
 shown in AVS.
Standards for challenging     OAC 460:20-15-14....  30 CFR 773.25.
 ownership or control links
 and the status of
 violations.
------------------------------------------------------------------------

    Because the above State rules have the same meaning as the 
corresponding Federal regulations, we find that they are no less 
effective than the Federal regulations.

B. OAC 460:20-15-7, Permit Conditions

    Oklahoma proposes to remove paragraph 5 of this section which 
prohibits the discharge or discrimination of any employee or authorized 
representative of employees that files for or institutes any 
proceedings under the Act, testifies at any proceeding or 
investigation, or exercises any rights granted by the Act.
    Section 703 of SMCRA prohibits reprisals against ``whistleblower'' 
employees. This provision is further implemented by 30 CFR Part 865 by 
requiring each employer conducting operations which are regulated under 
SMCRA to provide a copy of 30 CFR Part 865 to all current and new 
employees. However, States are not required to adopt a counterpart to 
30 CFR Part 865. If a State does not adopt a counterpart, OSM is 
responsible for administering the requirements of 30 CFR Part 865. 
Oklahoma's removal of OAC 460:20-15-7(5) does not effect the Oklahoma 
program. Therefore, we approve Oklahoma's removal of this provision.

IV. Summary and Disposition of Comments

Public Comments

    We requested public comments on the amendment, but did not receive 
any.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from various Federal agencies with an actual or potential 
interest in the Oklahoma program (Administrative Record No. OK-982.12). 
By letter date October 30, 1998, the U.S. Army Corps of Engineers 
responded to our request by stating that it found Oklahoma's amendment 
satisfactory (Administrative No. OK-982.02).

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to get written 
agreement from the EPA for those provisions of the program amendment 
that relate to air or water quality standards promulgated 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 Oklahoma proposed to make in this 
amendment pertain to air or water quality standards. Therefore, we did 
not ask the EPA to agree on the amendment.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record No. OK-982.10). The EPA 
did not respond to our request.
    State Historical Preservation Officer (SHPO) and the Advisory 
Council on Historic Preservation (ACHP)
    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On October 9, 1998, we requested comments on Oklahoma's 
amendment (Administrative Record No. OK-982.11), but neither responded 
to our request.

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Oklahoma on September 28, 1998, and as revised on June 23, 1999 and 
July 20, 1999. We approve the rules that Oklahoma proposed with the 
provision that they be published in identical form to the rules sent to 
and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 936, which codify decisions concerning the Oklahoma 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage Oklahoma 
to bring its program into conformity with the Federal standards. SMCRA 
requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866

    The Office of Management and Budget (OMB) exempts this rule from 
review 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 program is 
drafted and published 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 State regulatory programs and 
program amendments must be based solely on a determination of whether 
the submittal is consistent with SMCRA and its implementing Federal 
regulations and whether the other

[[Page 52232]]

requirements of 30 CFR Parts 730, 731, and 732 have been met.

National Environmental Policy Act

    This rule does not require an environmental impact statement since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on 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 
corresponding 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. Therefore, this rule will ensure that existing requirements 
previously published 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 corresponding Federal regulations.

Unfunded Mandates

    OSM has determined and certifies under the Unfunded Mandates Reform 
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of 
$100 million or more in any given year on local, state, or tribal 
governments or private entities.

List of Subjects in 30 CFR Part 936

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 15, 1999.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR Part 936 is amended 
as set forth below:

PART 936--OKLAHOMA

    1. The authority citation for Part 936 continues to read as 
follows:

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

    2. Section 936.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 936.15  Approval of Oklahoma regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
September 28, 1998............  September 28,      OAC 460:2-7-6; 2-8;
                                 1999.              20-15-11 through 14.
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[FR Doc. 99-25188 Filed 9-27-99; 8:45 am]
BILLING CODE 4310-05-P