[Federal Register Volume 66, Number 238 (Tuesday, December 11, 2001)]
[Proposed Rules]
[Pages 63968-63972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30578]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-028-FOR]


Oklahoma Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is announcing receipt of a proposed amendment to the Oklahoma 
regulatory program (Oklahoma program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). Oklahoma proposes 
revisions to its rules concerning employment and financial interests of 
state employees and members of advisory boards and commissions, and 
remining and reclamation of previously mined and certain inadequately 
reclaimed lands. Oklahoma intends to revise its program to be 
consistent with the corresponding Federal regulations. Oklahoma also 
intends to correct some cross references and typographical and 
grammatical errors.
    This document gives the times and locations that the Oklahoma 
program and the 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: We will accept written comments until 4:00 p.m., c.s.t., January 
10, 2002 . If requested, we will hold a public hearing on the amendment 
on January 7, 2002. We will accept requests to speak at the hearing 
until 4:00 p.m., c.s.t. on December 26, 2001.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Michael C. Wolfrom, Director, Tulsa 
Field Office, at the address listed below.
    You may review copies of the Oklahoma program, the proposed 
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 receive one free copy of the amendment by contacting 
OSM's Tulsa Field Office.

Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface 
Mining, 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: Michael C. Wolfrom, Director, Tulsa

[[Page 63969]]

Field Office. Telephone: (918) 581-6430. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Oklahoma 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 
Oklahoma program on January 19, 1981. 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. Description of the Proposed Amendment

    By letter dated November 1, 2001 (Administrative Record No. OK-
993), Oklahoma sent us an amendment to its program under SMCRA and the 
Federal regulations at 30 CFR 732.17(b). Oklahoma sent the amendment at 
its own initiative. Oklahoma proposes to amend the Oklahoma 
Administrative Code (OAC), Title 460, Chapter 20. Below is a summary of 
the changes proposed by Oklahoma. The full text of the program 
amendment is available for your inspection at the locations listed 
above under ADDRESSES.

A. Subchapter 3. Permanent Regulatory Program

OAC 460:20-3-5. Definitions
    Oklahoma proposes to add definitions for ``Lands eligible for 
remining'' and ``Unanticipated event or condition.''

B. Subchapter 5. Financial Interests of State Employees

1. OAC 460:20-5-1. Purpose
    In this section, Oklahoma proposes to add persons who are 
prohibited from having any direct or indirect financial interest in any 
underground or surface coal mining operation. These additional persons 
are (1) members of advisory boards, (2) the Oklahoma Mining Commission, 
and (3) commissions representing multiple interests.
2. OAC 460:20-5-2. Objectives
    Currently, the state's regulations prohibit employees of the 
Department of Mines who perform any function or duty under the Oklahoma 
Coal Reclamation Act of 1979 from having any direct or indirect 
financial interest in any underground or surface coal mining operation. 
Oklahoma proposes to expand the list of persons who perform any 
function or duty under the Oklahoma Coal Reclamation Act of 1979 and 
who are prohibited from these financial interests to include (1) 
members of advisory boards, (2) the Oklahoma Mining Commission, and (3) 
commissions representing multiple interests.
3. OAC 460:20-5-3. Authority
    Oklahoma proposes to remove the authority of the Director of the 
Department of Mines to ``file all statements and supplements received 
pursuant to 45 O.S. Supp., Section 765 from members of advisory boards 
and the Oklahoma Mining Commission with the Oklahoma Governor's Office, 
Director of Appointment.''
4. OAC 460:20-5-4. Responsibility
    a. In paragraph (a), Oklahoma proposes to require the Financial 
Officer of the state Department of Mines to furnish a blank employment 
and financial interest statement to each state employee, and members of 
advisory boards, the Oklahoma Mining Commission, and commissions 
representing multiple interests who are required to file a statement. 
The blank statement must be provided 45 days in advance of the filing 
date established by Section 460:20-5-8(a). In addition, the Financial 
Officer must provide annually to all state employees (required to file 
the statement) the name, address, and telephone number of the person 
whom they may contact for advice and counseling.
    b. Oklahoma proposes to add a new paragraph (b) that sets forth the 
duties of the Director of Appointments of the Oklahoma Governor's 
Office.
    c. Oklahoma proposes to revise paragraph (c) to read as follows:
    (c) Department of Mines employees, members of advisory boards, the 
Oklahoma Mining Commission, or commissions representing multiple 
interests performing any duties or functions under the Act shall:

    (1) Have no direct or indirect financial interests in coal 
mining operations;
    (2) File a fully completed statement of employment and financial 
interest 120 days after this Chapter becomes effective or upon 
entrance of duty, and annually thereafter on specified filing dates; 
and
    (3) Comply with directives issued by persons responsible for 
approving each statement and comply with directives issued by those 
persons responsible for ordering remedial actions.
5. OAC 460:20-5-7. Who Shall File
    In paragraph (a), Oklahoma proposes to require any employee, and 
members of the Oklahoma Mining Commission, advisory boards, and 
commissions representing multiple interests who perform any function or 
duty under the Oklahoma Coal Reclamation Act of 1979 to file a 
statement of employment and financial interests.
6. OAC 460:20-5-8. When To File
    a. In paragraph (a), Oklahoma proposes to add that members of the 
Oklahoma Mining Commission who perform functions or duties under the 
Oklahoma Coal Reclamation Act of 1979 must file employment and 
financial interest statements.
    b. In paragraph (b), Oklahoma proposes to add that new appointments 
to advisory boards, the Oklahoma Mining Commission, and commissions 
representing multiple interests who are hired, appointed, or 
transferred to perform functions or duties under the Oklahoma Coal 
Reclamation Act of 1979 will be required to file employment and 
financial interest statements at the time of entrance to duty.
    c. In paragraph (c), Oklahoma proposes to add that new appointments 
to advisory boards, the Oklahoma Mining Commission, and commissions 
representing multiple interests are not required to file annual 
employment and financial interest statements on the subsequent annual 
filing date if this date occurs within two months after their initial 
statement was filed.
7. OAC 460:20-5-9. Where To File
    In paragraph (b), Oklahoma proposes to add that members of the 
Oklahoma Mining Commission must file employment and financial interest 
statements with the Governor's Office, Office of Appointments.
8. OAC 460:20-5-10. What To Report
    a. In paragraph (a), Oklahoma proposes to add that advisory board 
members and commissioners must report all information required on the 
statement of employment and financial interests for themselves, their 
spouses, minor children, or other relatives who are full-time residents 
of their homes.
    b. Oklahoma proposes to revise paragraph (a)(2) to read as follows:


[[Page 63970]]


    (2) A certification that none of the listed financial interests 
represent a direct or indirect financial interest in an underground 
or surface coal mining operation except as specifically identified 
and described by the employee, advisory board member or commissioner 
as part of the certificate; and

    c. In paragraphs (b)(1) through (b)(4), Oklahoma proposes to 
require advisory board members and commissioners, in addition to 
employees, to provide information regarding any financial interests 
pertaining to employment, securities, real property, and creditors. d. 
In paragraph (c), Oklahoma proposes to require advisory board members 
and commissioners, in addition to employees, to provide a signed 
certification that (1) none of the financial interests shown on the 
financial interest statement represent an interest in an underground or 
surface coal mining operation except as specifically identified and 
described as exceptions, and (2) the information shown on the statement 
is true, correct, and complete. Also, in paragraph (c)(3)(C) regarding 
exceptions in the financial interest statements, Oklahoma proposes to 
require advisory board members and commissioners, in addition to 
employees, to provide any other information which they believe should 
be considered in determining whether or not an interest represents a 
prohibited interest.
9. OAC 460:20-5-13. Appeals Procedures
    Oklahoma proposes to designate the existing paragraph as paragraph 
(a) and to add new paragraph (b) to read as follows:
    (b) Members of advisory boards, the Oklahoma Mining Commission, and 
commissions representing multiple interests should follow any appeals 
process provided for by the Oklahoma Governor's Office, Director of 
Appointments.

C. Subchapter 15. Requirements for Permit and Permit Processing

1. OAC 460:20-15-4. Regulatory Coordination With Requirements Under 
Other Laws
    Oklahoma proposes to add a provision that each regulatory program 
must provide for the coordination of review and issuance of permits for 
surface coal mining and reclamation operations with applicable 
requirements of, among other things, all state, federal, and local 
permitting and licensing requirements.
2. OAC 460:20-15-6. Review of Permit Applications
    a. Oklahoma proposes to add new paragraphs (b)(4) and (b)(5) to 
read as follows:
    (4) Subsequent to October 24, 1992, the prohibitions of paragraph 
(b) of this Section regarding the issuance of a new permit shall not 
apply to any violation that:
    (A) Occurs after that date;
    (B) Is unabated and
    (C) Results from an unanticipated event or condition that arises 
from a surface coal mining and reclamation operation on lands that are 
eligible for remining under a permit:
    (i) Issued before September 30, 2004, or any renewals thereof; and
    (ii) Held by the person making application for the new permit;
    (5) For permits issued under Section 460:20-33-12 of this Chapter, 
an event or condition shall be presumed to be unanticipated for the 
purposes of this paragraph if it:
    (A) Arose after permit issuance;
    (B) Was related to prior mining; and
    (C) Was not identified in the permit.
    b. Oklahoma proposes to add new paragraph (c)(13) to read as 
follows:
    (13) For permits to be issued under Section 460:20-33-12 of this 
Chapter, the permit application must contain:
    (A) Lands eligible for remining;
    (B) An identification of the potential environmental and safety 
problems related to prior mining activity which could reasonably be 
anticipated to occur at the site; and
    (C) Mitigation plans to sufficiently address these potential 
environmental and safety problems so that reclamation as required by 
the applicable requirements of the regulatory program can be 
accomplished.

D. Subchapter 33. Requirements for Permits for Special Categories of 
Mining

OAC 460:20-33-12. Lands Eligible for Remining
    Oklahoma proposes to add this new section to its regulations. It 
contains the permitting requirements for conducting coal mining 
operations on lands eligible for remining.

E. Subchapter 43. Permanent Program Performance Standards: Surface 
Mining Standards

OAC 460:20-43-46. Revegetation: Standards for Success
    1. Oklahoma proposes to revise paragraphs (b)(6) to read as 
follows:

    (6) For areas previously disturbed by mining that were not 
reclaimed to the requirements of this Chapter and that are remined 
or otherwise redisturbed by surface coal mining operations, as a 
minimum, the vegetative ground cover shall be not less than the 
ground cover existing before redisturbance and shall be adequate to 
control erosion. In general this is considered to be at least 70% 
vegetative ground cover of approved vegetation species.

    2. Oklahoma proposes to revise paragraphs (c)(2) through (c)(3) to 
read as follows:

    (2) In areas of more than 26.0 inches average annual 
precipitation, the period of responsibility shall continue for a 
period of not less than:
    (A) Five full years, except as provided in paragraph (c)(2)(B) 
of this Section. The vegetation parameters identified in Subsection 
(b) of this Section for grazingland or pastureland and cropland 
shall equal or exceed the approved success standard during the 
growing seasons of any two years of the responsibility period, 
except the first year. Areas approved for the other uses identified 
in Subsection (b) of this Section shall equal or exceed the 
applicable success standard during the growing season of the last 
year of the responsibility period.
    (B) Two full years for lands eligible for remining included in 
permits issued before September 30, 2004, or any renewals thereof. 
To the extent that the success standards are established by 
Subsection (b)(6), the lands shall equal or exceed the standards 
during the growing season of the last year of the responsibility 
period.
    (3) In areas of 26.0 inches or less average annual 
precipitation, the period of responsibility shall continue for a 
period of not less than:
    (A) Ten full years, except as provided in Subsection (c)(3)(B) 
below. Vegetation parameters identified in Subsection (b) of this 
Section shall equal or exceed the approved success standards for at 
least the last two consecutive years of the responsibility period.
    (B) Five full years for lands eligible for remining included in 
permits issued before September 30, 2004, or any renewals thereof. 
To the extent that the success standards are established by 
Subsection (b)(6), the lands shall equal or exceed the standards 
during the growing seasons of the last two consecutive years of the 
responsibility period.

F. Subchapter 45. Permanent Program Performance Standards: Underground 
Mining Activities

OAC 460:20-45-46. Revegetation: Standards for Success
    1. Oklahoma proposes to revise paragraphs (b)(6) to read as 
follows:

    (6) For areas previously disturbed by mining that were not 
reclaimed to the requirements of this Chapter and that are remined 
or otherwise redisturbed by surface coal mining operations, as a 
minimum, the vegetative ground cover shall be not less than the 
ground cover existing before redisturbance and shall be adequate to

[[Page 63971]]

control erosion. In general this is considered to be at least 70% 
vegetative ground cover of approved vegetation species.

    2. Oklahoma proposes to revise paragraphs (c)(2) through (c)(3) to 
read as follows:

    (2) In areas of more than 26.0 inches average annual 
precipitation, the period of responsibility shall continue for a 
period of not less than:
    (A) Five full years, except as provided in paragraph (c)(2)(B) 
of this Section. The vegetation parameters identified in Subsection 
(b) of this Section for grazingland or pastureland and cropland 
shall equal or exceed the approved success standard during the 
growing seasons of any two years of the responsibility period, 
except the first year. Areas approved for the other uses identified 
in Subsection (b) of this Section shall equal or exceed the 
applicable success standard during the growing season of the last 
year of the responsibility period.
    (B) Two full years for lands eligible for remining included in 
permits issued before September 30, 2004, or any renewals thereof. 
To the extent that the success standards are established by 
Subsection (b), the lands shall equal or exceed the standards during 
the growing season of the last year of the responsibility period.
    (3) In areas of 26.0 inches or less average annual 
precipitation, the period of responsibility shall continue for a 
period of not less than:
    (A) Ten full years, except as provided in Subsection (c)(3)(B) 
below. Vegetation parameters identified in Subsection (b) of this 
Section shall equal or exceed the approved success standards for at 
least the last two consecutive years of the responsibility period.
    (B) Five full years for lands eligible for remining included in 
permits issued before September 30, 2004, or any renewals thereof. 
To the extent that the success standards are established by 
Subsection (b), the lands shall equal or exceed the standards during 
the growing seasons of the last two consecutive years of the 
responsibility period.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking comments 
on whether the proposed amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Oklahoma program.
    Written Comments: If you submit written or electronic comments on 
the proposed rule during the 30-day comment period, they should be 
specific, should be confined to issues pertinent to the notice, and 
should explain the reason for your recommendation(s). We may not be 
able to consider or include in the Administrative Record comments 
delivered to an address other than the one listed above (see 
ADDRESSES).
    Electronic Comments: Please submit Internet comments as an ASCII, 
WordPerfect, or Word file avoiding the use of special characters and 
any form of encryption. Please also include ``Attn: SPATS NO. OK-028-
FOR'' and 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 Tulsa Field Office at (918) 581-6430.
    Availability of Comments: Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours at OSM's Tulsa Field Office (see 
ADDRESSES). Individual respondents may request that we withhold their 
home address from the administrative record, which we will honor to the 
extent allowable by law. There also may be circumstances in which we 
would withhold from the administrative record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous 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 inspection in their entirety.
    Public Hearing: If you wish to speak at the public hearing, contact 
the person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
c.s.t. on December 26, 2001. We will arrange the location and time of 
the hearing with those persons requesting the hearing. If no one 
requests an opportunity to speak at the public hearing, the hearing 
will not be held.
    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 testimony. The public 
hearing will continue on the specified date until all persons scheduled 
to speak have been 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 all 
persons scheduled to speak and persons 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 
at a hearing, a public meeting, rather than a public hearing, may be 
held. If you wish to meet with us to discuss the proposed amendment, 
you may 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 also make a written summary of each 
meeting a part of the Administrative Record.

IV. Procedural Determinations

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 12630--Takings

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

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 under SMCRA.

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 allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of this section. However, these standards are 
not applicable to the actual language of state regulatory programs and 
program amendments since each program is drafted and promulgated by a 
specific state, not 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

[[Page 63972]]

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

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 State 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 because it 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 the Office of Management and Budget 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. Therefore, 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, federal, state, or local government 
agencies, or geographic regions.
    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 936

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 16, 2001.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 01-30578 Filed 12-10-01; 8:45 am]
BILLING CODE 4310-05-P