[Federal Register Volume 70, Number 200 (Tuesday, October 18, 2005)]
[Proposed Rules]
[Pages 60481-60483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20786]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[Docket No. OK-030-FOR]


Oklahoma Regulatory Program

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

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

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are 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 rules concerning cross sections, maps, and plans; 
subsidence control; impoundments; revegetation success standards; 
roads; and review of decision not to inspect or enforce. Oklahoma 
intends to revise its program to provide additional safeguards, clarify 
ambiguities, and improve operational efficiency. This document gives 
the times and locations that the Oklahoma program and 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 on this amendment until 4 p.m., 
c.d.t. November 17, 2005. If requested, we will hold a public hearing 
on the amendment on November 14, 2005. We will accept requests to speak 
at a hearing until 4 p.m., c.d.t. on November 2, 2005.

ADDRESSES: You may submit comments, identified by Docket No. OK-030-
FOR, by any of the following methods:
     E-mail: [email protected]. Include ``Docket No. OK-030-
FOR'' in the subject line of the message.
     Mail/Hand Delivery: Michael C. Wolfrom, Director, Tulsa 
Field Office, Office of Surface Mining Reclamation and Enforcement, 
5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547.
     Fax: (918) 581-6419.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the Oklahoma 
program, this amendment, a listing of any scheduled public hearings, 
and all written comments received in response to this document, you 
must go to the address 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 
Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470, Tulsa, 
Oklahoma 74135-6547, Telephone: (918) 581-6430, E-mail: 
[email protected].
    In addition, you may review a copy of the amendment during regular 
business hours at the following location: Oklahoma Department of Mines, 
4040 N. Lincoln Blvd., Suite 107, Oklahoma City, Oklahoma 73105, 
Telephone: (405) 427-3859.

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

SUPPLEMENTARY INFORMATION:

I. Background on the Oklahoma Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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, ``* * * 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 the 
Oklahoma program and program amendments at 30 CFR 936.10, 936.15 and 
936.16.

II. Description of the Proposed Amendment

    By letter dated July 15, 2005 (Administrative Record No. OK-
946.02), Oklahoma sent us an amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). Oklahoma sent the amendment to include the 
changes made at its own initiative. Below is a summary of the changes 
proposed by Oklahoma. Any revisions that we do not specifically discuss 
below concern nonsubstantive wording or editorial changes or 
corrections of cross-references. The full text of the program amendment 
is available for you to read at the locations listed above under 
ADDRESSES.

A. 460:20-25-11, and 460:20-29-11. Cross Sections, Maps, and Plans

    Oklahoma proposed to delete subsections (a)(11) that require permit 
applicants to include on cross sections, maps, and plans, sufficient 
slope measurements to adequately represent the existing land surface 
configuration of the proposed permit area.

B. 460:20-31-13. Subsidence Control Plan

    Oklahoma proposed to revise subsection (a)(3) so that, for areas 
where unplanned subsidence is projected to be used, an underground 
mining permit application does not have to include a pre-subsidence 
survey of: (1) the condition of all non-commercial buildings or 
occupied residential dwellings and related structures thereto, or (2) 
the quantity and quality of all drinking, domestic, and residential 
water supplies within the permit and adjacent areas.

[[Page 60482]]

C. 460:20-43-14. Impoundments

    Oklahoma proposed to add new subsection (a)(14) to read as follows:

    (14) The embankment slopes of each impoundment shall not be 
closer than 100 feet to any public road right-of-way unless 
otherwise approved under procedures established in 460:20-7-4(4) and 
460:20-7-5(d). The area between the road right-of-way and the 
impoundment slopes, clear zone slopes, shall not be steeper than a 
1V:6H grade.

D. 460:20-43-46. and 460:20-45-46. Revegetation: Standards for Success

    Oklahoma proposed to revise subsection (b)(3) pertaining to the 
minimum revegetation success standards for areas developed for fish and 
wildlife habitat, recreation, shelter belts, or forest products.
    1. Oklahoma proposed to revise paragraph (b)(3)(A), regarding fish 
and wildlife habitat, by requiring the Oklahoma Department of Mines to 
specify the minimum stocking and planting arrangements for fish and 
wildlife habitat after consulting with the State agencies responsible 
for the administration of forestry and wildlife programs.
    2. Oklahoma proposed to add new sub-paragraphs (b)(3)(A)(i) and 
(ii), regarding fish and wildlife habitat plans, that set forth the 
minimum: (1) stocking rate and types of trees or shrubs if trees or 
shrubs are to be planted, and (2) seeding rate and types of grasses or 
forbs if grasses or forbs are to be planted.
    3. Oklahoma proposed to add new sub-paragraph (b)(3)(A)(iii) 
requiring the applicant to submit an alternative wildlife habitat plan 
to the Department for review if he or she chooses not to follow the 
requirements of proposed new sub-paragraphs (b)(3)(A)(i) and (ii) 
regarding fish and wildlife habitat plans. In addition, the applicant 
must submit, along with the alternative plan, written approval of the 
alternative planting rates and species from the State agency 
responsible for the management of fish and wildlife.
    4. Oklahoma proposed to add new paragraph (b)(3)(D) that requires 
comments regarding minimum revegetation success standards for areas 
developed for fish and wildlife habitat, recreation, shelter belts, or 
forest products from State agencies responsible for the management of 
fish and wildlife.

E. 460:20-43-52. Roads: General

    Oklahoma proposed to add new subsection (d)(3) that requires 
compliance with 460:20-43-14(a)(1) when a public road is relocated.

F. 460:20-45-47. Subsidence Control

    Oklahoma proposed to delete, in its entirety, subsection (b)(4) 
pertaining to a rebuttable presumption of causation by subsidence.

G. 460:20-57-6. Review of Decision Not to Inspect or Enforce

    1. Oklahoma proposed to revise subsection (a) to read as follows: 
?>

    (a) Any person who is or may be adversely affected by a coal 
exploration or surface coal mining and reclamation operation may 
request the Department to review informally an authorized 
representative's decision not to inspect or take appropriate 
enforcement action with respect to any violation alleged by that 
person in request for a State inspection under Section 460:20-57-3. 
The request for review shall follow the procedures set forth in this 
Section.

    2. Oklahoma proposed to revise subsection (b) by deleting the 
current language and replacing it with language that specifies the 
procedures for requesting and conducting an informal conference.
    3. Oklahoma proposed to add new subsection (c) that specifies a 
reasonable time frame for holding the informal conference, where the 
conference is to be held, and notifications that must be made regarding 
the conference.
    4. Oklahoma proposed to add new subsection (d) that specifies when 
an informal conference may be canceled.
    5. Oklahoma proposed to redesignate existing subsections (c) and 
(d) as new subsections (e) and (f).
    6. Oklahoma proposed to revise redesignated subsection (f) to read 
as follows:

    (f) Any determination made under (b) of this Section shall 
constitute a decision of the Department within the meaning of the 
Department's Rules of Practice and Procedure and shall contain a 
right of an appeal to formal administrative review in accordance 
with the Rules of Practice and Procedure.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Written Comments

    Send your written or electronic comments to us at the address given 
above. Your written comments should be specific, pertain only to the 
issues proposed in this rulemaking, and include explanations in support 
of your recommendations. We will not consider or respond to your 
comments when developing the final rule if they are received after the 
close of the comment period (see DATES). We will make every attempt to 
log all comments into the administrative record, but comments delivered 
to an address other than the Tulsa Field Office may not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: Docket No. OK-030-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

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their 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 review 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 p.m., c.d.t. on 
November 2, 2005. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be 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 everyone scheduled to speak and others

[[Page 60483]]

present in the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please 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 make a 
written summary of each meeting a part of the administrative record.

IV. 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 (OMB) 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. 
This determination is based on the fact that the Oklahoma program does 
not regulate coal exploration and surface coal mining and reclamation 
operations on Indian lands. Therefore, the Oklahoma program has no 
effect on Federally-recognized Indian tribes.

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 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 936

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 2, 2005.
Charles E. Sandberg,
Regional Director, Mid-Continent Region.
[FR Doc. 05-20786 Filed 10-17-05; 8:45 am]
BILLING CODE 4310-05-P