[Federal Register Volume 61, Number 183 (Thursday, September 19, 1996)]
[Proposed Rules]
[Pages 49282-49284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23942]
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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.
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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
