[Federal Register Volume 75, Number 68 (Friday, April 9, 2010)]
[Rules and Regulations]
[Pages 18048-18051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8175]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SATS No. OK-032-FOR; Docket No. OSM-2008-0023]


Oklahoma Regulatory Program

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

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

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 (ODM, 
Oklahoma, or department) made revisions to its rules regarding 
circumstances under which a notice of violation may have an abatement 
period greater than 90 days. Oklahoma revised its program at its own 
initiative to improve operational efficiency.

DATES: Effective Date: April 9, 2010.

FOR FURTHER INFORMATION CONTACT: Alfred L. Clayborne, Director, Tulsa 
Field Office, and Telephone: (918) 581-6430, E-mail: 
[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

[[Page 18049]]

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. Submission of the Amendment

    By letter dated November 26, 2008, (Administrative Record No. OK-
998), Oklahoma sent us amendments to its approved regulatory program 
under SMCRA (30 U.S.C. 1201 et seq.). Oklahoma submitted these 
amendments at its own initiative. Oklahoma proposed a revision to the 
notices of violation rules as well as the deletion of rules concerning 
the appeals procedures and appeals board.
    We announced receipt of Oklahoma's amendments in the January 9, 
2009, Federal Register (74 FR 868). In the same document, we opened the 
public comment period and the public was provided an opportunity to 
submit comments or request a public hearing on the adequacy of the 
amendments. We did not hold a public meeting because no one requested 
one. The public comment period ended February 9, 2009. We did not 
receive any comments.
    During our review of the amendment, we identified concerns 
regarding Oklahoma's proposed deletion of its Appeals procedures 
section 460:20-5-13. We notified Oklahoma of these concerns by letter 
dated December 11, 2008, and by e-mail dated February 11, 2009, 
(Administrative Record Nos. OK-998.02, and OK-998.08).
    Oklahoma responded by letters dated January 8, 2009; July 7, 2009; 
and November 10, 2009 (Administrative Record Nos. OK-998.03, OK-998.09, 
and OK-998.11). Oklahoma submitted another letter, December 22, 2009, 
(Administrative Record No. OK-998.12) withdrawing the appeals 
procedures and appeals board sections from its proposed amendment and 
committing to resubmitting a separate formal amendment regarding these 
two sections at a later date.
    Withdrawal of the proposed amendments related to appeals procedures 
at the appeals board leaves Oklahoma's approved regulatory program no 
less effective than the Federal regulations at 30 CFR 843.12(f)(1). For 
this reason, we did not reopen the public comment period.

III. OSM's Finding

    The following are our findings concerning the submitted amendment 
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We 
are approving the amendment as described below.

Section 460:20-59-4--Notices of Violation

    Oklahoma proposed to revise its regulations at OAC 460:20-59-4--
Notices of violation, by removing portions of language in subsection 
460:20-59-4(f)(1) and adding new language at subsection 460:20-59-
4(f)(2) that is consistent with the Federal regulations at 30 CFR 
843.12(f)(1). The circumstances which may qualify a surface coal mining 
operation for an abatement period of more than 90 days are: (1) Where 
the permittee of an ongoing permitted operation has timely applied for 
and diligently pursued a permit renewal but such permit or approval has 
not been or will not be issued within 90 days after a valid permit 
expires or is required, for reasons not within the control of the 
permittee; (2) Where the permittee of an ongoing permitted operation 
has timely applied for and diligently pursued a permit revision which 
abates an outstanding violation and which includes no other changes to 
permit design or plans, but such revision approval has not or will not 
be issued within 90 days for reasons not within the control of the 
permittee.
    The Federal regulations at 30 CFR 843.12(f) identify circumstances 
which may qualify a surface coal mining operation for an abatement 
period of more than 90 days. They are: (1) Where the permittee of an 
ongoing permitted operation has timely applied for and diligently 
pursued a permit renewal or other necessary approval of designs or 
plans but such permit or approval has not been or will not be issued 
within 90 days after a valid permit expires or is required, for reasons 
not within the control of the permittee; (2) Where there is a valid 
judicial order precluding abatement within 90 days as to which the 
permittee has diligently pursued all rights of appeal and as to which 
he or she has no other effective legal remedy; (3) Where the permittee 
cannot abate within 90 days due to a labor strike; (4) Where climatic 
conditions preclude abatement within 90 days, or where, due to climatic 
conditions, abatement within 90 days clearly would cause more 
environmental harm than it would prevent; or (5) Where abatement within 
90 days requires action that would violate safety standards established 
by statute or regulation under the Mine Safety and Health Act of 1977.
    Oklahoma feels, and we agree, that this revision will better 
clarify the circumstance under which an abatement period may exceed 90 
days while preventing excessive delays due to permit revisions 
containing unrelated issues that would require lengthy review periods. 
Their amendment will continue to allow an abatement period greater than 
90 days related to a permit renewal but will only allow an abatement 
period greater than 90 days for an outstanding permit revision if the 
revision is related only to the violation issues and does not contain 
unrelated items that could excessively delay the review process.
    We find that the changes by Oklahoma are no less effective than the 
Federal regulations; therefore, we are approving them.

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 3, 2008, under 30 CFR 732.17(h)(11)(i) and section 
503(b) of SMCRA, we requested comments from various agencies with an 
actual or potential interest in Oklahoma's Appeals procedures, Appeals 
board, and Notices of violation (Administrative Record No. OK-998.04), 
we received comments from one agency, the Oklahoma Historical Society. 
The agency had no objections to Oklahoma's proposed regulatory program 
changes.

Environmental Protection Agency (EPA) Concurrence and Comments

    We are required to get a written concurrence from the Environmental 
Protection Agency (EPA) under 30 CFR 732.17(h)(11)(ii), for those 
provisions of Oklahoma's program amendments 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.).
    On December 3, 2008, and February 21, 2009, we requested comments 
on the proposed amendments from the EPA (Administrative Record Nos. OK-
998.04). The EPA did not respond to our request.

V. OSM's Decision

    Based on the above findings, we are approving Oklahoma's revision 
to its Notices of violation submitted on November 26, 2008.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 936 which codifies 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

[[Page 18050]]

purposes. Making this rule effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

VI. 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 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 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: February 16, 2010.
Ervin J. Barchenger,
Regional Director, Mid-Continent Region.

    Editorial Note: This document was received in the Office of the 
Federal Register on April 6, 2010.

0
For the reasons set out in the preamble, 30 CFR part 936 is amended as 
set forth below:

PART 936--OKLAHOMA

0
1. The authority citation for Part 936 continues to read as follows:


[[Page 18051]]


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


0
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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
November 26, 2008..............  April 9, 2010.....  Notice of violations: Section 460:20-59-4.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2010-8175 Filed 4-8-10; 8:45 am]
BILLING CODE 4310-05-P