Oklahoma Regulatory Program, 18048-18051 [2010-8175]
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Federal Register / Vol. 75, No. 68 / Friday, April 9, 2010 / Rules and Regulations
in the Houston, TX, terminal area.
Specifically, the FAA is eliminating the
route segment of T–254 between the
Centex, TX, VORTAC and College
Station, TX, VORTAC. This action
eliminates unnecessary duplication
with an existing route segment of
Federal Airway V–565 to enhance safety
and facilitate the efficient use of the
navigable airspace for en route
instrument flight rules operations
transitioning around the Houston Class
B terminal airspace area.
Low altitude RNAV routes are
published in paragraph 6011 of FAA
Order 7400.9T, Airspace Designations
and Reporting Points, signed August 27,
2009, and effective September 15, 2009,
which is incorporated by reference in 14
CFR 71.1. The low altitude RNAV route
listed in this document will be
published subsequently in the Order.
The FAA has determined that this
regulation only involves an established
body of technical regulations for which
frequent and routine amendments are
necessary to keep them operationally
current. Therefore, this regulation: (1) Is
not a ‘‘significant regulatory action’’
under Executive Order 12866; (2) is not
a ‘‘significant rule’’ under Department of
Transportation (DOT) Regulatory
Policies and Procedures (44 FR 11034;
February 26, 1979); and (3) does not
warrant preparation of a regulatory
evaluation as the anticipated impact is
so minimal. Since this is a routine
matter that will only affect air traffic
procedures and air navigation, it is
certified that this rule, when
promulgated, will not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, Section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority.
This rulemaking is promulgated
under the authority described in
Subtitle VII, Part A, Subpart I, Section
40103. Under that section, the FAA is
charged with prescribing regulations to
assign the use of the airspace necessary
to ensure the safety of aircraft and the
efficient use of airspace. This regulation
is within the scope of that authority as
it amends a low altitude Area
Navigation route (T–254) in the
Houston, TX, terminal area.
Policy Act in accordance with FAA
Order 1050.1E, ‘‘Environmental Impacts:
Policies and Procedures,’’ paragraphs
311a. This airspace action is not
expected to cause any potentially
significant environmental impacts, and
no extraordinary circumstances exist
that warrant preparation of an
environmental assessment.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
■
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:
■
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of the Federal Aviation
Administration Order 7400.9T, Airspace
Designations and Reporting Points,
signed August 27, 2009, and effective
September 15, 2009, is amended as
follows:
■
Paragraph 6011
Area Navigation Routes
*
*
*
*
*
T–254 College Station, TX to Lake Charles,
LA [Amended]
College Station, TX (CLL) VORTAC
(Lat. 30°36′18″ N., long. 96°25′14″ W.)
EAKES, TX WP
(Lat. 30°33′18″ N., long. 95°18′29″ W.)
CREPO, TX WP
(Lat. 30°16′54″ N., long. 94°14′43″ W.)
Lake Charles, LA (LCH) VORTAC
(Lat. 30°08′29″ N., long. 93°06′20″ W.)
Issued in Washington, DC, on April 1,
2010.
Ellen Crum,
Acting Manager, Airspace and Rules Group.
[FR Doc. 2010–8015 Filed 4–8–10; 8:45 am]
BILLING CODE 4910–13–P
Environmental Review
The FAA has determined that this
action qualifies for categorical exclusion
under the National Environmental
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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: aclayborne@osmre.gov.
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
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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
srobinson on DSKHWCL6B1PROD with RULES
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.
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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
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18049
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
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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.
srobinson on DSKHWCL6B1PROD with RULES
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.
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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 Federallyrecognized 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
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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.
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:
■
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Federal Register / Vol. 75, No. 68 / Friday, April 9, 2010 / Rules and Regulations
Authority: 30 U.S.C. 1201 et seq.
chronological order by ‘‘date of final
publication’’ to read as follows:
2. Section 936.15 is amended in the
table by adding a new entry in
■
18051
§ 936.15 Approval of Oklahoma regulatory
program amendments.
*
*
*
*
*
Original amendment submission date
Date of final publication
*
*
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]
Fiscal Year 2007 (Pub. L. 109–364)
added section 1097c to Title 10, United
States Code. Section 1097c prohibits
employers from offering financial or
other incentives to certain TRICAREeligible employees (essentially retirees
and their family members) to not enroll
in an employer-offered GHP in the same
manner as employers are currently
prohibited from offering incentives to
Medicare-eligible employees under
section 1862(b)(3)(C) of the Social
Security Act (42 U.S.C. 1395y(b)(3)(C)).
Many employers, including state and
local governments, have begun to offer
their employees who are TRICAREeligible a TRICARE supplement as an
incentive not to enroll in the employer’s
primary GHP. These actions shift
thousands of dollars of annual health
costs per employee to the Defense
Department, draining resources from
higher national security priorities.
TRICARE is, as is Medicare, a secondary
payer to employer-provided health
insurance. In all instances where a
TRICARE beneficiary is employed by a
public or private entity and elects to
participate in a GHP, reimbursements
for TRICARE claims will be paid as a
secondary payer to the TRICARE
beneficiary’s employer-sponsored GHP.
TRICARE is not responsible for paying
first as it relates to reimbursements for
a TRICARE beneficiary’s health care and
the coordination of benefits with
employer-sponsored GHPs.
An identified employer-sponsored
health plan will be the primary payer
and TRICARE will be the secondary
payer. TRICARE will generally pay no
more than the amount it would have
paid if there were no employer GHP. As
applicable to both the Medicare and
TRICARE secondary payer programs,
the term ‘‘group health plan’’ means a
plan (including a self-insured plan) of,
or contributed to by, an employer
(including a self-employed person) or
employee organization to provide health
care (directly or otherwise) to the
employees, former employees, the
employer, others associated or formerly
associated with the employer in a
business relationship, or their families.
It should be noted that by including any
plan of an employer to provide health
care to employees, this definition is very
broad.
The purpose of the prohibition on
incentives not to enroll in employersponsored GHPs is to prevent employers
from shifting their responsibility for
their employees onto the Federal
taxpayers. Certain common employer
benefit programs do not constitute
improper incentives under the law. For
example, the general rule is that an
employer-funded benefit offered
through an employer’s cafeteria plan
that comports with section 125 of the
Internal Revenue Code would not be
considered improper incentive, as long
as it is not a TRICARE exclusive benefit.
A cafeteria plan, as defined by the
Internal Revenue Code, 26 U.S.C.
125(d), is a written plan under which all
participants are employees and the
participants may choose among two or
more benefits consisting of cash and
qualified benefits. Employers who
adhere to the requirements of section
125 and offer all similarly situated
employees without regard to TRICARE
eligibility a choice between health
insurance and cash payment equivalents
are not considered in violation of 42
U.S.C. 1395y(b)(3)(C). Therefore, if a
TRICARE beneficiary elects the cashpayment option as a benefit offered via
the employer’s cafeteria plan, one which
meets section 125 requirements, then
the employer would not be in violation
of these provisions. In general, 10 U.S.C.
1097c prohibits employer-endorsed
TRICARE supplemental plans as an
option for health coverage under an
employer-sponsored GHP to TRICAREeligible beneficiaries. This type of
benefit cannot be offered as part of a
cafeteria plan because the employer, by
endorsing this type of plan, effectively
offers an improper incentive targeted
only at TRICARE beneficiaries for not
enrolling in the employer’s main health
plan option or options.
Section 1097c does not impact
TRICARE supplemental plans that are
not offered by an employer but are sold
by an insurer and/or beneficiary
association working in conjunction with
an insurer. Such non-employersponsored TRICARE supplemental
plans will continue to be expressly
BILLING CODE 4310–05–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 199
[Docket ID: DoD–2007–HA–0078; RIN 0720–
AB17]
TRICARE; Relationship Between the
TRICARE Program and EmployerSponsored Group Health Coverage
Office of the Secretary, DoD.
Final rule.
AGENCY:
ACTION:
SUMMARY: This final rule implements
section 1097c of Title 10, United States
Code, as added by section 707 of the
John Warner National Defense
Authorization Act for Fiscal Year 2007,
Public Law 109–364. This law prohibits
employers from offering incentives to
TRICARE-eligible employees to not
enroll or to terminate enrollment in an
employer-offered Group Health Plan
(GHP) that is or would be primary to
TRICARE. Benefits offered through
cafeteria plans that comport with
section 125 of the Internal Revenue
Code will be permissible as long as the
plan treats all similarly situated
employees eligible for benefits the same
and does not illegally take TRICARE
eligibility into account. TRICARE
supplemental insurance plans, because
they are limited to TRICARE
beneficiaries exclusively, are generally
impermissible. Properly documented
non-employer contributed TRICARE
supplemental plans, however, are
allowed.
DATES:
Effective June 18, 2010.
Ms.
Kathleen Larkin, TRICARE Policy and
Operations, TRICARE Management
Activity, 5111 Leesburg Pike, Suite 810,
Falls Church, VA 22041, telephone
(703) 681–0039.
SUPPLEMENTARY INFORMATION:
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FOR FURTHER INFORMATION CONTACT:
I. Background
Section 707 of the John Warner
National Defense Authorization Act for
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Citation/description
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]]>Agencies
[Federal Register Volume 75, Number 68 (Friday, April 9, 2010)]
[Rules and Regulations]
[Pages 18048-18051]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-8175]
=======================================================================
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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:
aclayborne@osmre.gov.
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.
* * * * *
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Original amendment submission Date of final
date publication Citation/description
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* * * * * * *
November 26, 2008.............. April 9, 2010..... Notice of violations: Section 460:20-59-4.
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[FR Doc. 2010-8175 Filed 4-8-10; 8:45 am]
BILLING CODE 4310-05-P
