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###### Department of the Interior

###### Office of Surface Mining Reclamation and Enforcement 

          - 30 CFR Part 936 
          - [OK-029-FOR] 

# AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior. 

# ACTION:

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

# SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of a proposed amendment to the Oklahoma regulatory program (the Oklahoma program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The Oklahoma Department of Mines (Department or Oklahoma) proposes revisions to and additions of 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. 

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.s.t., January 22, 2002. If requested, we will hold a public hearing on the amendment on January 17, 2002. We will accept requests to speak at a hearing until 4 p.m., c.s.t. on January 7, 2002. 

# ADDRESSES:

You should mail or hand deliver written comments and requests to speak at the hearing to Michael C. Wolfrom, Director, Tulsa Field Office, at the address listed below. 

                        You may 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 at the addresses listed below during normal business hours, Monday through Friday,                               ( print page 65859)                            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, Internet:                         *mwolfrom@osmre.gov*

                        Mary Ann Pritchard, Director, Oklahoma Department of Mines, 4040 N. Lincoln Blvd., Suite 107, Oklahoma City, Oklahoma 73105, Telephone: (405) 521-3859, Internet:                         *maryann@guinan.osmre.gov*

# FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Director, Tulsa Field Office. Telephone: (918) 581-6430. Internet: mwolfrom@osmre.gov. 

# 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, “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. Description of the Proposed Amendment

                    By letter dated November 20, 2001 (Administrative Record No. OK-988.02), Oklahoma sent us an amendment to its 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). Oklahoma proposes to amend the Oklahoma Administrative Code (OAC) at Subchapter 7 (Areas Designated by Act of Congress as Unsuitable for Mining) and Subchapter 13 (General Requirements for Coal Exploration Operations). Below is a summary of the changes proposed by Oklahoma. The full text of the program amendment is available for you to read at the locations listed above under                     **ADDRESSES.**

### A. OAC 460:20-7-2 Authority 

Oklahoma proposes to revise its authority provision to read as follows: 

The Department is authorized by Act to prohibit or limit surface coal mining operations on or near private, Federal, and other public lands, except for those operations which existed on August 3, 1977 or were subject to valid existing rights at the time the land came under the protection of 45 O.S. Section 783 and Section 460:20-7-4. 

### B. OAC 460:20-7-3 Definitions 

Oklahoma proposes to remove its definition of “surface coal mining operations which exist on the date of enactment.” Oklahoma also proposes to revise its definition of “valid existing rights.” 

### C. OAC 460:20-7-4 Areas Where Surface Coal Mining Operations Are Prohibited or Limited 

Oklahoma proposes to revise the introductory paragraph of OAC 460:20-7-4 to read as follows: 

No surface coal mining operations shall be conducted on the following lands unless those operations either have valid existing rights, as determined under Section 460:20-7-5, or qualify for the exception for existing operations under Section 460:20-7-4.1. 

Oklahoma also proposes minor wording, editorial, and punctuation changes to OAC 460:20-7-4(2) through (5). 

### D. OAC 460:20-7-4.1 Exception for Existing Operations 

Oklahoma proposes to add this new section to describe those surface coal mining operations for which the provisions of OAC 460:20-7-4 do not apply. 

### E. OAC 460:20-7-5 Procedures 

Oklahoma proposes to revise this section to describe the procedures applicants for surface coal mining operation permits must follow when requesting a valid existing rights determination. This section also describes the evaluation procedures and decision-making criteria the regulatory authority will follow when making a valid existing rights determination. 

### F. OAC 460:20-13-5 Permit Requirements for Exploration Removing More Than 250 Tons of Coal 

1. At OAC 460:20-13-5(b)(14), Oklahoma proposes to require applicants for coal exploration permits to include the following information in their applications: 

For any lands listed in Section 460:20-7-4 of this Chapter, a demonstration that, to the extent technologically and economically feasible, the proposed exploration activities have been designed to minimize interference with the values for which those lands were designated as unsuitable for surface coal mining operations. The application must include documentation of consultation with the owner of the feature causing the land to come under the protection of Section 460:20-7-4 of this Chapter, and, when applicable, with the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of Section 460:20-7-4 of this Chapter. 

2. At OAC 460:20-13-5(d)(2)(D), Oklahoma proposes to add the following new requirement that it will use when making decisions on applications for coal exploration permits: 

With respect to exploration activities on any lands protected under Section 460:20-7-4 of this Chapter, minimize interference, to the extent technologically and economically feasible, with the values for which those lands were designated as unsuitable for surface coal mining operations. Before making this finding, the Department must provide reasonable opportunity to the owner of the feature causing the land to come under the protection of Section 460:20-7-4 of this Chapter, and when applicable, to the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of Section 460:20-7-4 of this Chapter, to comment on whether the finding is appropriate. 

## 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 OSM 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                           ( print page 65860)                        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: [OK-029-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 4:00 p.m., c.s.t. on January 7, 2002. 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 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 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. 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.                           ( print page 65861)    

### 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: November 30, 2001. 

Charles E. Sandberg, 

Acting Regional Director, Mid-Continent Regional Coordinating Center. 

[FR Doc. 01-31536 Filed 12-20-01; 8:45 am] 

BILLING CODE 4310-05-P