Oklahoma Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-017-FOR]

Oklahoma Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; reopening and extension of public comment period

on proposed amendment.

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

SUMMARY: OSM is announcing receipt of revisions pertaining to a

previously proposed amendment to the Oklahoma regulatory program

(hereinafter referred to as the ``Oklahoma program'') under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA). The revisions for

Oklahoma's proposed rules pertain to protected activities. The proposed

amendment is intended to revise the Oklahoma regulations to be

consistent with the Federal regulations.

DATES: Written comments must be received by 4:00 p.m., c.d.t., October

4, 1996.

ADDRESSES: Written comments should be mailed or hand delivered to Jack

R. Carson, Acting Director, Tulsa Field Office at the address listed

below.

Copies of the Oklahoma program, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Tulsa Field Office.

Jack R. Carson, Acting 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.

Oklahoma Department of Mines, 4040 N. Lincoln Blvd., Suite 107,

Oklahoma City, Oklahoma 73105, Telephone: (405) 521-3859.

FOR FURTHER INFORMATION CONTACT:

Jack R. Carson, Acting Director, Tulsa Field Office, Telephone: (918)

581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Oklahoma Program

II. Discussion of the Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations

I. Background on the Oklahoma Program

On January 19, 1981, the Secretary of the Interior conditionally

approved the Oklahoma program. Background information on the Oklahoma

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the January

19, 1981, Federal Register (46 FR 4902). Subsequent actions concerning

the conditions of approval and program amendments can be found at 30

CFR 936.15 and 936.16.

II. Discussion of the Proposed Amendment

By letter dated February 21, 1996, (Administrative Record No. OK-

973), Oklahoma submitted a proposed amendment to its program pursuant

to SMCRA. Oklahoma submitted the proposed amendment at its own

initiative. The provisions of the Oklahoma regulations that Oklahoma

proposed to amend were at Oklahoma Administrative Code (OAC) 460:20-15-

7 concerning permit conditions. Specifically, Oklahoma proposed to

revise OAC 460:20-15-7 by adding a new permit condition at subsection

(5) concerning protected activity and by renumbering existing

subsections (5) through (8) to be (6) through (9).

OSM announced receipt of the proposed amendment in the March 5,

1996, Federal Register (61 FR 8536) and invited public comment on its

adequacy. The public comment period ended April 4, 1996.

During its review of the amendment, OSM identified concerns

relating to Oklahoma's proposed addition, at OAC 460:20-15-7(5), of a

new permit condition concerning protected activities. OSM was

specifically concerned that the existing state enforcement and citizens

complaint regulations do not contain the procedures necessary to

implement the requirements of the Federal regulations dealing with

protected activities at 30 CFR Part 865. OSM notified Oklahoma of the

concerns by letter dated June 25, 1996 (Administrative Record No. OK-

973.06). Oklahoma responded in a letter dated August 28, 1996,

(Administrative Record No. OK-973.08) by submitting a revised

amendment.

Oklahoma proposed the additions of a new subchapter at OAC 460:20-

16, concerning protection of employees, to replace the changes

originally proposed for OAC 460:20-15-7.

Specifically, Oklahoma proposes to add new subchapter 16 concerning

protection of employees that reads as follows.

460:20-16-1. Scope

This subchapter establishes procedures regarding:

(1) The reporting of acts of discriminatory discharge or other acts

of discrimination under the Act and this Chapter caused by any

person. Forms of the discrimination include, but are not limited to:

(A) Firing,

(B) suspension,

(C) transfer or demotion,

(D) denial or reduction of wages and benefits,

(E) coercion of promises of benefits or threats of reprisal, and

(F) interference with the exercise of any rights afforded under

the Act and this Chapter:

(2) The investigation of applications for review and holding of

informal conferences about the alleged discrimination; and

(3) The request for formal hearings with the Department's Legal

Division.

460:20-16-2. Protected activity

(a) No person shall discharge or in any other way discriminate

against or cause to be fired or discriminated against any employee

or any authorized representative of employees because that employee

or representative has:

(1) Filed, instituted or caused to be filed or instituted any

proceedings under the Act and this chapter by:

(A) Reporting alleged violations or dangers to the Director, the

Department of Mines, or the employer or his representative.

(B) Requesting an inspection or investigation; or

(C) Taking any other action which may result in a proceeding

under the Act and this Chapter.

(2) Made statements, testified, or is about to do so:

(A) In any informal or formal adjudicatory proceedings;

(B) In any informal conference proceeding;

(C) In any rulemaking proceeding;

(D) In any investigation, inspection or other proceeding under

the Act and this Chapter;

(E) In any judicial proceeding under the Act and this Chapter.

(3) Has exercised on his own behalf or on behalf of other any right

granted by the Act and this Chapter.

(b) Each employer conducting operations which are regulated under

this Act and this Chapter, shall within 30 days from the effective

day of these regulations, provide a copy of this Subchapter to all

current employees and to all new employees at the time of their

hiring.

460:20-16-3. Procedures for filing an application for review of

discrimination

[[Page 49283]]

(a) Who may file. Any employee, or any authorized representative or

employees, who believes that he has been discriminated against by

any person in violation of 460:20-16-2(a) of this subchapter may

file an application for review. For the purpose of this subchapter,

an application for review means the presentation of a written report

of discrimination stating the reasons why the person believes he has

been discriminated against and the facts surrounding the alleged

discrimination.

(b) Where to file. The employee or representative may file the

application for review at any location of the Office and each office

shall maintain a log of all filing.

(c) Time for filing. The employee or representative shall file an

application for review within 30 days after the alleged

discrimination occurs. An application is considered filed:

(1) On the date delivered if delivered to the Office, or

(2) On the date received by the Office.

(d) Running of the time of filing. The time for filing begins

when the employee knows or has reason to know of the alleged

discriminatory activity.

460:20-16-4. Investigation and conference procedures

(a) Within 7 days after receipt of any application for review, the

Office shall mail a copy of the application for review to the person

alleged to have caused the discrimination, shall file the

application for review with the Department's Legal Division and

shall notify the employee and the alleged discriminating person that

the Department will investigate the complaint. The alleged

discriminating person may file a response to the application for

review within 10 days after he receives the copy of the application

for review. The response shall specifically admit, deny or explain

each of the facts alleged in the application unless the alleged

discriminating person is without knowledge in which case he shall so

state.

(b) The Department shall initiate an investigation of the alleged

discrimination with 30 days after receipt of the application for

review. The Department shall complete the investigation within 60

days of the date of receipt of the application for review. If

circumstances surrounding the investigation prevent completion

within the 60-day period, the Department shall notify the person who

filed the application for review and the alleged discriminating

person of the delay, the reason for the delay, and the expected

completion date for the investigation.

(c) Within 7 days after completion of the investigation the

Department shall invite the parties to an informal conference to

discuss the findings and preliminary conclusions of the

investigation. The purpose of the informal conference is to attempt

to conciliate the matter. If a complaint is resolved at an informal

conference, the terms of the agreement will be recorded in a written

document that will be signed by the alleged discriminating person,

the employee and the representative of the Department. If the

Department concludes on the basis of a subsequent investigation that

any party to the agreement has failed in any material respect to

comply with the terms of any agreement reached during an informal

conference, the Department shall take appropriate action to obtain

compliance with the agreement.

(d) Following the investigation and any informal conference held,

the Department shall complete a report of investigation which shall

include a summary of the results of the conference. Copies of this

report shall be available to the parties in the case.

460:20-16-5. Request for hearing

(a) If the Department determines that a violation of this subchapter

has probably occurred and was not resolved at an informal

conference, the Director shall request a formal hearing on the

employee's behalf before the Hearing Examiner within 10 days of the

scheduled informal hearing. The parties shall be notified of the

determination. If the Director declines to request a hearing the

employee shall be notified within 10 days of the scheduled informal

conference and informed of his right to request a hearing on his own

behalf.

(b) The employee may request a formal hearing with the Hearing

Examiner after 60 days have elapsed from the filing of his

application.

460:20-16-6. Formal adjudicatory proceedings

(a) Formal adjudication of a complaint filed under this subchapter

shall be conducted in the Legal Divisions pursuant to this

Subchapter and OAC 460:2, Rules of Practice and Procedure for the

Coal Reclamation Act of 1979.

(b) A hearing shall be held as promptly as possible consistent with

the opportunity for discovery provided for under OAC 460:2.

(c) Upon a finding of violation of 460:20-16-2 of this subchapter,

the Director shall order the appropriate affirmative relief

including, but not limited to, the rehiring or reinstatement of the

employee or representative of employees to his former position with

compensation. At the request of the employee a sum equal to the

aggregate amount of all costs and expenses including attorney's fees

which have been reasonably incurred by the employee for, or in

connection with, the institution and prosecution of the proceedings

shall be assessed against the person committing the violation.

(d) On or after 10 days after filing an application for review under

this subchapter the Director or the employee may seek temporary

relief with the Legal Division.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed Oklahoma

program amendment to provide the public an opportunity to reconsider

the adequacy of the proposed amendment in light of the additional

materials submitted. In accordance with the provisions of 30 CFR

732.17(h), OSM is seeking comments on whether the proposed amendment

satisfies the applicable program approval criteria of 30 CFR 732.15. If

the amendment is deemed adequate, it will become part of the Oklahoma

program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Tulsa Field Office will not

necessarily be considered in the final rulemaking or included in the

Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This proposed rule is exempted from review by the Office of

Management and Budget (OMB) under Executive Order 12866 (Regulatory

Planning and Review.

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, 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 since each such

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 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 49284]]

National Environmental Policy Act

No environmental impact statement is required for this rule since

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 has determined 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. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. 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.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 913

Intergovernmental relations, Surface mining, Underground mining.

Dated: September 11, 1996.

Michael C. Wolfrom,

Acting Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 96-23942 Filed 9-18-96; 8:45 am]

BILLING CODE 4310-05-M