[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