[Federal Register Volume 63, Number 109 (Monday, June 8, 1998)]
[Rules and Regulations]
[Pages 31114-31116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15241]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-035-FOR]


Texas Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Texas regulatory 
program (hereinafter referred to as the ``Texas program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The 
amendment consists of revisions to Texas' regulations pertaining to 
definitions, prime farmland, small operator assistance, release of 
performance bond, and backfilling and grading. The amendment is 
intended to revise the Texas program to be consistent with the 
corresponding Federal regulations.

EFFECTIVE DATE: June 8, 1998.

FOR FURTHER INFORMATION CONTACT:
Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface 
Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470, 
Tulsa, Oklahoma 74135-6548, Telephone: (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Texas Program

    On February 16, 1980, the Secretary of the Interior conditionally 
approved the Texas program. Background information on the Texas 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in the February 
27, 1980 Federal Register (45 FR 12998). Subsequent actions concerning 
the conditions of approval and program amendments can be found at 30 
CFR 943.10, 943.15, and 943.16.

II. Submission of the Proposed Amendment

    By letter dated December 1, 1997 (Administrative Record No. TX-
644), Texas submitted and amendment to its program pursuant to SMCRA. 
Texas submitted the amendment in response to a June 17, 1997, letter 
(Administrative Record No. 640) and OSM sent to Texas in accordance 
with 30 CFR 732.17(c). Texas amended its regulations at Chapter 12 of 
the Texas Administrative Code (TAC) pertaining to definitions, prime 
farmland, small operator assistance, release of performance bond, and 
backfilling and grading.
    OSM announced receipt of the proposed amendment in the December 29, 
1997, Federal Register (62 FR 67598) and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment. The public comment 
period closed on January 28, 1998. Because no one requested a public 
hearing or meeting, none was held.
    During its review of the amendment, OSM identified concerns 
relating to release of performance bond and backfilling and grading. 
OSM notified Texas of the concerns by letter dated February 12, 1998 
(Administrative Record No. TX-644.06). Texas responded in a letter 
dated March 6, 1998 (Administrative Record No. TX-644.07, by submitting 
revisions to its amendment. Based upon the revisions to the proposed 
program amendment submitted by Texas, OSM reopened the public comment 
period in the April 29, 1998, Federal Register (63 FR 23407). The 
public comment period closed on May 14, 1998.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment.
    Revisons not specifically discussed below concern nonsubstantive 
wording changes, or revised cross-references and paragraph nota6tions 
to reflect organizational changes resulting from this amendment.

A. Revisions to Texas' Regulations That Are Substantively Identical to 
the Corresponding Provisions of the Federal Regulations

    The State regulations listed in the table below contain language 
that is the same as or similar to the corresponding sections of the 
Federal regulations. Differences between the State regulations and the 
Federal regulations are nonsubstantive.

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              Topic                           State regulation                 Federal counterpart regulation   
----------------------------------------------------------------------------------------------------------------
Definition of Previously Mined     16 TAC 12.3...........................  30 CFR 701.5                         
 Area.                                                                                                          
Definition of Qualified            16 TAC 12.3...........................  30 CFR 701.5                         
 Laboratory.                                                                                                    
Definition of Thick Overburden...  16 TAC 12.3...........................  30 CFR 816.105(a)                    
Definition of Thin Overburden....  16 TAC 12.3...........................  30 CFR 816.104(a)                    
Prime Farmland...................  16 TAC 12.201(d)(5)...................  30 CFR 785.17(e)(5)                  
Terms and Conditions of the Bond.  16 TAC 12.309(1)......................  30 CFR 800.21(f)                     
Release of Performance Bond--      16 TAC 12.312 (a)(1), (a)(2), (a)(3)..  30 CFR 800.40 (a)(1), (a)(2), (a)(3) 
 Application.                                                                                                   
Release of Performance Bond--      16 TAC 12.312 (b)(1), (b)(2)..........  30 CFR 800.40 (b)(1), (b)(2)         
 Inspection.                                                                                                    
Release of Performance Bond--      16 TAC 12.313 (a), (a)(1), (a)(2),      30 CFR 800.40 (c), (c)(1), (c)(2),   
 Criteria and Schedule.             (a)(3), (b), (d), (f).                  (c)(3), (d), (f), (g)               
Backfilling and Grading: Thin      16 TAC 12.387.........................  30 CFR 816.104(b)                    
 Overburden.                                                                                                    

[[Page 31115]]

                                                                                                                
Backfilling and Grading: Thick     16 TAC 12.388.........................  30 CFR 816.105(b)                    
 Overburden.                                                                                                    
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    Because the above proposed revisions are identical in meaning to 
the corresponding Federal regulations, the Director finds that Texas' 
proposed regulations are no less effective than the Federal 
regulations.

B. Small Operator Assistance Program (SOAP)

1. 16 TAC 12.237 Eligibility for Assistance
    At section 12.237(2), Texas amended the eligibility requirements 
for participation in its small operator assistance program by 
increasing the amount of the probable total actual and attributed 
production allowed for applicants from 100,000 to 300,000 tons. At 
section 12.237(2) (B) and (C), Texas increased the baseline percentage 
above which ownership will play a role in determining attributed coal 
production from 5 to 10 percent.
    The Director finds that the proposed revisions are consistent with 
the requirements of the Federal regulations at 30 CFR 795.6(a)(2), and 
is approving them.
2. 16 TAC 12.243 Applicant Liability
    Texas revised section 12.243(a) to require that a coal operator who 
has received assistance pursuant to sections 12.236 and 12.240 
reimburse the Commission for the cost of the services rendered. Texas 
revised section 12.243(a)(4) to specify that reimbursement will be 
required if the Commission finds that the operator's actual and 
attributed annual production of coal for all locations exceeds 300,000 
tons during the 12 months immediately following the date on which the 
operator is issued the surface coal mining and reclamation permit. 
Texas revised section 12.243(a)(5) to specify that reimbursement will 
be required if the permit is sold, transferred, or assigned to another 
person and the transferee's total actual and attributed production 
exceeds the 300,000-ton production limit during the 12 months 
immediately following the date on which the permit was originally 
issued.
    The Director finds that the revisions to section 12.243 make it 
substantively identical to the Federal regulation at 30 CFR 795.12, and 
is approving the revisions.
3. 16 TAC 12.236 and 12.240
    In the June 17, 1997, letter that was sent to Texas in accordance 
with 30 CFR 732.17(c), OSM also notified Texas of changes needed to its 
small operator assistance program regulations pertaining to program 
services and data requirements. Texas noted in this proposed amendment 
that it will propose revisions to its regulations at 16 TAC 12.236 
(Program Services) and 12.240 (Data Requirements) in a future amendment 
following appropriate statutory changes. Texas also stated that it 
currently has no small operator assistance program and has no current 
or potential operations that may qualify for program assistance. 
Therefore, it is the Director's understanding that Texas will not 
implement its small operator assistance program regulations until after 
it amends its regulations at 16 TAC 12.236 and 12.240.

IV. Summary and Disposition of Comments

Public Comments

    OSM solicited public comments on the proposed amendment, but none 
were received.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Texas program (Administrative 
Record No. TX-644.03). By letter dated December 24, 1997, the U.S. Army 
Corps of Engineers commented that its review found the changes to be 
satisfactory (Administrative Record No. TX-644.05).

Environmental Protection Agency (EPA).

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed amendment that relate to air or water quality standards 
promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 
et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). None of the 
revisions that Texas proposed to make in this amendment pertain to air 
or water quality standards. Therefore, OSM did not request the EPA's 
concurrence.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
amendment from the EPA (Administrative Record No. TX-644.01). The EPA 
did not respond to OSM's request.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit 
comments on proposed amendments which may have an effect on historic 
properties from the SHPO and ACHP. OSM solicited comments on the 
proposed amendment from the SHPO and ACHP (Administrative Record No. 
TX-644.02). Neither the SHPO nor ACHP responded to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Texas on December 1, 1997, and as revised on 
March 6, 1998.
    The Director approves the regulations proposed by Texas with the 
provision that they be fully promulgated in identical form to the 
regulations submitted to and reviewed by OSM and the public.
    The Federal regulations at 30 CFR Part 943, codifying decisions 
concerning the Texas program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

    This 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

[[Page 31116]]

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.

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 
corresponding 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 corresponding Federal regulations.

Unfunded Mandates

    OSM has determined and certifies pursuant to the Unfunded Mandates 
Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a 
cost of $100 million or more in any given year on local, state, or 
tribal governments or private entities.

List of Subjects in 30 CFR Part 943

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 22, 1998.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR part 943 is amended 
as set forth below:

PART 943--TEXAS

    1. The authority citation for Part 943 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 943.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 943.15  Approval of Texas regulatory program amendments.

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------------------------------------------------------------------------
 Original amendment submission    Date of final                         
             date                  publication      Citation/description
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*                  *                  *                  *              
                  *                  *                  *               
December 1, 1997..............  June 8, 1998.....  16 TAC 12.3;         
                                                    12.201(d)(5);       
                                                    12.237(2), (2)(B)   
                                                    and (C); 12.243(a), 
                                                    (a)(4) and (5);     
                                                    12.309(1); 12.312(a)
                                                    and (b); 12.313(a), 
                                                    (b), (d), and (f);  
                                                    12.387; 12.388.     
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[FR Doc. 98-15241 Filed 6-5-98; 8:45 am]
BILLING CODE 4310-05-M