[Federal Register Volume 77, Number 85 (Wednesday, May 2, 2012)]
[Rules and Regulations]
[Pages 25872-25874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10561]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SATS No. OK-033-FOR; Docket No. OSM-2011-0001]


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 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act). Oklahoma revised its regulations regarding subsidence 
allegation reporting requirements and requirements for bond calculation 
at permit renewal. Oklahoma revised its regulatory program at its own 
initiative for operational efficiency.

DATES: Effective Date: May 2, 2012.

FOR FURTHER INFORMATION CONTACT: Alfred L. Clayborne, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. Email: [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 the Oklahoma 
program and program amendments at 30 CFR 936.10, 936.15, and 936.16.

II. Submission of the Amendment

    By letter dated February 25, 2011 (Administrative Record No. OK-
1000), Oklahoma sent us an amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). Oklahoma submitted its proposed amendment at its 
own initiative. Oklahoma proposed revisions to the Oklahoma 
Administrative Code at sections 460:20-43-14(b)(7) and 460:20-45-
14(b)(7) concerning size limitations on permanent impoundments, 460:20-
43-38(1) concerning approximate original contour, 460:20-43-47(c)(3) 
and 460:20-45-47(c)(6) concerning subsidence reporting, and 460:20-17-
4(b)(2)(C) concerning requirements for bond calculation at renewal.
    We announced receipt of the proposed amendment in the April 27, 
2011, Federal Register (76 FR 23522). 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 May 27, 2011. We did not receive any public 
comments.
    During our review of the amendment, we identified concerns 
regarding the proposed revisions to Oklahoma Administrative Code 
460:20-43-14(b)(7) and 460:20-45-14(b)(7) concerning size limitations 
on permanent impoundments, as well as 460:20-43-38(1) concerning 
approximate original contour. We notified Oklahoma of these concerns by 
letter dated October 21, 2011 (Administrative Record No. OK-1000.04). 
By letter, dated November 18, 2011 (Administrative Record No. OK-
1000.06), Oklahoma responded and withdrew these sections regarding 
impoundments and approximate original contour from the proposed 
amendment and requested that we process the sections regarding 
subsidence reporting and bond calculation.

III. OSM's Findings

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

A. Oklahoma Administrative Code 460:20-43-47(c)(3) & 460:20-45-47(c)(6) 
Subsidence Reporting

    Oklahoma's regulations require the operator to comply with all 
provisions of the approved subsidence control plan. The proposed 
addition would require the operator to report to the Department of 
Mines all instances of alleged subsidence within 30 calendar days. The 
report must be in writing. The report must identify the location of the 
alleged subsidence in relation to the underground mine workings.
    The Federal regulations, at 30 CFR 784.20(b)(4), provide for 
subsidence monitoring to determine what measures may be taken to 
prevent, reduce, or

[[Page 25873]]

correct material damage. This new reporting requirement will enhance 
Oklahoma's ability to ensure that an operation remains in compliance 
with permit requirements and that mining will be conducted in 
accordance with 30 CFR 817.121. We find Oklahoma's proposed revision 
will make its regulations no less effective than the Federal 
regulations. As such, we are approving Oklahoma's revision.

B. Oklahoma Administrative Code 460:20-17-4(b)(2)(C) Requirement for 
Bond Calculation at Renewal

    Oklahoma's existing regulations contain minimum requirements for 
permit renewal that are no less effective than the Federal regulations. 
The proposed addition would require, for any permit renewal requested, 
the operator to submit a current bond calculation (less than 60 days 
old) detailing the costs to reclaim the permit by a third party under 
the approved worst case bond scenario, and evidence that the 
performance bond in effect will continue in full force, as well as any 
additional bond required by the Department of Mines.
    The Federal regulations, at 30 CFR 774.15(b)(2)(iii), require 
evidence that a performance bond is in effect and will remain so for 
the renewal period, including any bond amount adjustments required by 
the state at renewal. The proposed new requirement for an operator to 
submit a current bond calculation at permit renewal will further 
clarify what an operator must submit with a renewal application. By 
requiring a current (less than 60 days old) bond calculation from the 
operator, Oklahoma will have the information it needs in making its 
required findings under the state counterpart to 30 CFR 774.15(c)(1)(v) 
and to determine if bond adjustments are necessary as required under 
the state counterparts to 30 CFR 800.4(c), 800.15(a), and 
817.121(c)(5). Because the operator's estimate will be no more than 60 
days old, the information can reasonably be expected to reflect both 
the extent of mining and reclamation, and the economic conditions at 
the time of renewal, both of which directly influence bonding adequacy. 
We find Oklahoma's proposed revision will make its regulations no less 
effective than the Federal regulations. As such, we are approving 
Oklahoma's revision.

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 March 8, 2011, 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 No. OK-1000.03). 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 get a written 
concurrence from 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. However, on 
March 8, 2011, under 30 CFR 732.17(h)(11)(i), we requested comments on 
the amendment from the EPA (Administrative Record No. OK-1000.03). 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 March 8, 2011, we requested comments on Oklahoma's 
amendment (Administrative Record No. OK-1000.03), but neither responded 
to our request.

V. OSM's Decision

    Based on the above findings, we approve the above specified 
portions of the amendment Oklahoma sent us on February 25, 2011.
    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 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-

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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: March 8, 2012.
Ervin J. Barchenger,
Regional Director, Mid-Continent Region.

    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:

    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
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                              * * * * * * *
February 25, 2011.............  May 2, 2012......  OAC 460:20-17-
                                                    4(b)(2)(C), 460:20-
                                                    43-47(c)(3), and
                                                    460:20-45-47(c)(6).
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[FR Doc. 2012-10561 Filed 5-1-12; 8:45 am]
BILLING CODE 4310-05-P