[Federal Register Volume 67, Number 101 (Friday, May 24, 2002)]
[Rules and Regulations]
[Pages 36514-36516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13105]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[OK-029-FOR]


Oklahoma Regulatory Program

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

ACTION: Final rule, approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving an amendment to the Oklahoma regulatory program 
(Oklahoma program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). The Oklahoma Department of Mines 
(Department or Oklahoma) proposed revisions to its rules about areas 
designated by act of congress as unsuitable for mining and coal 
exploration operations. Oklahoma intends to revise its program to be 
consistent with the corresponding Federal regulations.

EFFECTIVE DATE: May 24, 2002.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

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

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 this Act * * * ; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this 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 of the Oklahoma program in the January 19, 1981, Federal 
Register (46 FR 4902). You can also find later actions concerning 
Oklahoma's program and program amendments at 30 CFR 936.15 and 936.16.

II. Submission of the Amendment

    By letter dated November 20, 2001 (Administrative Record No. OK-
988.02), Oklahoma sent us an amendment to its approved regulatory 
program under SMCRA (30 U.S.C. 1201 et seq.). Oklahoma sent the 
amendment in response to an August 23, 2000, letter (Administrative 
Record No. OK-988) that we sent to Oklahoma in accordance with 30 CFR 
732.17(c).
    We announced receipt of the amendment in the December 21, 2001, 
Federal Register (66 FR 65858). 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. We did not hold a public 
hearing or meeting because no one requested one. The public comment 
period ended on January 22, 2002. We received comments from one Federal 
agency and one State agency.
    During our review of the amendment, we identified concerns relating 
to definitions at OAC 460:20-7-3, procedures at OAC 460:20-7-5, and 
various editorial errors. We notified Oklahoma of the concerns by 
letters dated December 13, 2001, January 16, 2002, and March 6, 2002 
(Administrative Record Nos. OK-988.06, OK-988.08, and OK-988.12).
    On February 21 and March 26, 2002, Oklahoma sent us revisions to 
its amendment (Administrative Record Nos. OK-988.10 and OK-988.14). 
Based upon Oklahoma's revisions, we reopened the public comment period 
in the April 5, 2002, Federal Register (67 FR 16341). The public 
comment period ended on April 22, 2002. 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 as described below. Any revisions that we do 
not specifically discuss below concern nonsubstantive wording or 
editorial changes.

A. Minor Revisions to Oklahoma's Rules

    Oklahoma proposed minor wording, editorial, punctuation, 
grammatical, and recodification changes to the following previously-
approved rules:
    OAC 460:20-7-5(b)(2), rights determination and OAC 460:20-7-5(g), 
applicability to lands designated as unsuitable by Congress.
    Because these changes are minor, we find that they will not make 
Oklahoma's rules less effective than the Federal regulations.

B. OAC 460:20-7-3 Definitions

    Oklahoma deleted its definition of ``surface coal mining operations 
which exist on the date of enactment'' because this term no longer 
appears in its rules.
    We are approving Oklahoma's deletion because it is consistent with 
OSM's deletion of the Federal counterpart definition of ``surface coal 
mining operations which exist on the date of enactment.'' See 64 FR 
70766, dated December 17, 1999.

C. 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.

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            Topic                            State rule                      Federal counterpart regulation
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Authority...................  OAC 460:20-7-2..........................  30 CFR 761.3.
Definition of Community or    OAC 460:20-7-3..........................  30 CFR 761.5.
 Institutional Building.
Definition of Valid Existing  OAC 460:20-7-3..........................  30 CFR 761.5.
 Rights.
Areas Where Surface Coal      OAC 460:20-7-4 Introductory paragraph,    30 CFR 761.11 Introductory paragraph,
 Mining Operations are         (2), (3), and (4)(B).                     (b), (c), (d)(2).
 Prohibited or Limited.
Exception for Existing        OAC 460:20-7-4.1........................  30 CFR 761.12(a).
 Operations.
Procedures--Obligations at    OAC 460:20-7-5(a), (b)(1), (f)(1) and     30 CFR 761.17(a), (b), (d)(1) and (3).
 Time of Permit Application    (3).
 Review.

[[Page 36515]]

 
Procedures--Compatibility     OAC 460:20-7-5(c).......................  30 CFR 761.13.
 Findings for Surface Coal
 Mining Operations on
 Federal Lands in National
 Forests.
Procedures--Relocating or     OAC 460:20-7-5(d).......................  30 CFR 761.14.
 Closing a Public Road or
 Waiving the Prohibition on
 Surface Coal Mining
 Operations Within the
 Buffer Zone of a Public
 Road.
Procedures--Waiving the       OAC 460:20-7-5(e).......................  30 CFR 761.15.
 Prohibition on Surface Coal
 Mining Operations Within
 the Buffer Zone of an
 Occupied Dwelling.
Procedures--Submission and    OAC 460:20-7-5(h).......................  30 CFR 761.16.
 Processing of Requests for
 Valid Existing Rights
 Determinations.
Permit Requirements for       OAC 460:20-13-5(b)(14), (d)(2)(D).        30 CFR 772.12(b)(14), (d)(2)(iv).
 Exploration Removing More
 Than 250 Tons of Coal.
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    Because Oklahoma's proposed rules contain language that is the same 
as or similar to the corresponding Federal regulations, we find that 
they are no less effective than the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

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

Federal Agency Comments

    On December 5, 2001, and February 26, 2002, 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 an actual or potential 
interest in the Oklahoma program (Administrative Record Nos. OK-988.03 
and OK-988.11). We did not receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the 
written concurrence of 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 
Oklahoma proposed to make in this amendment pertain to air or water 
quality standards. Therefore, we did not ask EPA to concur on the 
amendment.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from EPA (Administrative Record Nos. OK-988.03 and OK-
988.11). EPA responded on January 2, 2002 (Administrative Record No. 
OK-988.04), that it had no comments.

State Historic 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 December 5, 2001, and February 26, 2002, we requested 
comments on Oklahoma's amendment (Administrative Record Nos. OK-988.03 
and OK-988.11). The SHPO responded on January 3, 2002 (Administrative 
Record No. OK-988.05). The SHPO was concerned that several of 
Oklahoma's proposed rules did not consider properties that are 
``eligible for inclusion on the National Register of Historic Places.''
    On January 29, 2002 (Administrative Record No. 988.09), we sent a 
letter telling the SHPO that Oklahoma's proposed rules are consistent 
with Section 522(e)(3) of SMCRA and the Federal regulations. We also 
explained that even though SMCRA and the Federal regulations do not 
require consideration of properties eligible for listing on the 
National Register of Historic Places when making a determination of 
whether a person has valid existing rights to mine in areas where 
surface coal mining operations are normally prohibited or limited, the 
permit application requirements and other provisions of the Oklahoma 
rules and the Federal regulations do require this consideration for 
these areas.

V. Director's Decision

    Based on the above findings, we approve the amendment Oklahoma sent 
to us on November 20, 2001, and as revised on February 21 and March 26, 
2002.
    We approve the rules proposed by Oklahoma with the provision that 
they be fully promulgated in identical form to the rules submitted 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 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 final rule effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    In this rule, the State is adopting valid existing rights standards 
that are similar to the standards in the Federal definition at 30 CFR 
761.5. Therefore, this rule has the same takings implications as the 
Federal valid existing rights rule. The takings implications assessment 
for the Federal valid existing rights rule appears in Part XXIX.E of 
the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 
1999.

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.

[[Page 36516]]

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. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

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 governmental 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 936

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 26, 2002.
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:


[sect] 936.15  Approval of Oklahoma regulatory program amendments.

* * * * *

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   Original amendment submission date           Date of final publication             Citation/description
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                                                  * * * * * * *
November 20, 2001.......................  May 24, 2002........................  OAC 460:20-7-2; 20-7-3; 20-7-4
                                                                                 Introductory paragraph, (2),
                                                                                 (3), and (4)(B); 20-7-4.1; 20-7-
                                                                                 5(a), (b)(1) and (2), (c), (d),
                                                                                 (e), (f)(1) and (3), (g), (h);
                                                                                 20-13-5(b)(14), (d)(2)(D).
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[FR Doc. 02-13105 Filed 5-23-02; 8:45 am]
BILLING CODE 4310-05-P