[Federal Register Volume 65, Number 227 (Friday, November 24, 2000)]
[Rules and Regulations]
[Pages 70487-70489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29969]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-047-FOR]


Texas Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving an amendment to the Texas regulatory program (Texas 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Texas proposed revisions to and additions of regulations 
concerning remining, coal processing plants, and procedures for 
processing petitions to designate lands as unsuitable for mining. Texas 
intends to revise its program to be consistent with the corresponding 
Federal regulations.

EFFECTIVE DATE: November 24, 2000.

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

SUPPLEMENTARY INFORMATION:
    I. Background on the Texas Program.
    II. Submission of the 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. You can find background information on the 
Texas program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval in the February 27, 1980, 
Federal Register (45 FR 12998). You can find later actions concerning 
the Texas program at 30 CFR 943.10, 943.15, and 943.16.

II. Submission of the Amendment

    By letter dated August 24, 2000 (Administrative Record No. TX-
650.01), Texas sent us an amendment to its program under SMCRA and the 
Federal regulations at 30 CFR 732.17(b). Texas sent the amendment in 
response to our letter dated November 22, 1999 (Administrative Record 
No. TX-650), that we sent to Texas under 30 CFR 732.17(c). The 
amendment also includes changes made at Texas' own initiative.
    We announced receipt of the amendment in the September 12, 2000, 
Federal Register (65 FR 54982). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the adequacy of the proposed amendment. The public 
comment period closed on October 12, 2000. Because no one requested a 
public hearing or meeting, we did not hold one.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are the Director's findings concerning the amendment to the 
Texas program.
    Any revisions that we do not discuss below concern minor wording 
changes, or revised cross-references and paragraph notations to reflect 
organizational changes resulting from this amendment.

A. Revisions to Texas' Regulations That Have the Same Meaning as 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 minor.

------------------------------------------------------------------------
                                                     Federal counterpart
            Topic               State regulation         regulation
------------------------------------------------------------------------
Initial processing            TAC 12.80(a)(1).....  30 CFR 764.15(a)(1)
 procedures.
Backfilling and grading:      TAC 12.385(e)-        30 CFR 816.106(a)-
 General grading               (e)(2)(D) and TAC     (b)(4) and 30 CFR
 requirements.                 12.552(e)-(e)(2)(D).  817.106(a)-(b)(4)
Coal processing plants:       TAC 12.651(13)......  30 CFR 827.12(l)
 Performance standards.
------------------------------------------------------------------------

    Because the above State regulations have the same meaning as the 
corresponding Federal regulations, we find that they are no less 
effective than the Federal regulations.

B. Revisions to Texas' Regulations That Are Not the Same as the 
Corresponding Provisions of the Federal Regulations

1. TAC Sec. 12.385(a) Backfilling and Grading: General Grading 
Requirements.
    Texas proposed to remove the following language from this 
paragraph:

    The requirements of this section may be modified by the 
Commission where the surface mining activities are reaffecting 
previously mined lands that have not been restored to the standards 
of Secs. 12.330-12.384, this section, and Secs. 12.386-12.403 of 
this title (relating to Permanent Program Performance Standards--
Surface Mining Activities) and sufficient spoil is not available to 
otherwise comply with this section.

    We are approving the removal of this language because it is not as 
effective as the Federal regulations at 30 CFR 816.106 concerning the 
backfilling and grading of previously mined areas. Also, in this 
rulemaking, Texas proposed and we are approving an amendment to its 
regulations that include provisions for backfilling and grading of 
previously mined areas that are as effective as the Federal 
regulations. Please refer to the table listed in III. Director's 
Findings, A. Backfilling and grading: General grading requirements.
2. TAC Sec. 12.552(a) Backfilling and Grading: General Grading 
Requirements.
    Texas proposed to remove the following language from this 
paragraph:

    The requirements of this section may be modified by the 
Commission where the surface mining activities are reaffecting 
previously mined lands that have not been restored to the standards 
of Secs. 12.500-12.551, this section, and Secs. 12.553-12.572 of 
this title (relating to Permanent Program Performance Standards--
Underground Mining Activities) and sufficient spoil is not available 
to otherwise comply with this section.

    We are approving the removal of this language because it is not as 
effective as the Federal regulations at 30 CFR 817.106 concerning the 
backfilling and grading of previously mined areas. Also, in this 
rulemaking, Texas proposed and

[[Page 70488]]

we are approving an amendment to its regulations that include 
provisions for backfilling and grading of previously mined areas that 
are as effective as the Federal regulations. Please refer to the table 
listed in III. Director's Findings, A. Backfilling and grading: General 
grading requirements.

C. Revisions to Texas' Regulations With No Corresponding Federal 
Regulations

1. TAC Sec. 12.80(a)(3)-(a)(7) Initial Processing Procedures
    Texas proposed to remove paragraph (a)(3) which reads as follows:

    (3) The Commission may reject petitions for designations or 
terminations of designations which are frivolous. Once the petition 
requirements for completeness are met, no party shall bear any 
burden of proof, but each accepted petition shall be considered and 
acted upon by the Commission pursuant to the procedures of this 
subchapter (relating to Lands Unsuitable for Mining).

    As a result of this removal, Texas is redesignating paragraphs 
(a)(4) through (a)(7) as paragraphs (a)(3) through (a)(6). We are 
approving the removal and redesignations of the above regulations 
because there is no Federal counterpart regulation to paragraph (a)(3) 
and its removal and the subsequent redesignation of paragraphs (a)(4) 
through (a)(7) as paragraphs (a)(3) through (a)(6) will not make the 
Texas regulations less effective than the Federal regulations.
    Also, Texas proposed to revise paragraph (a)(4) [redesignated as 
paragraph (a)(3)] by adding new language (shown in bold) to read as 
follows:

    (3) If the Commission determines that the petition is 
incomplete, frivolous, or that the petitioner does not meet the 
requirement of Sec. 12.79(a) of this title (relating to Procedures: 
Petitions), it shall return the petition to the petitioner with a 
written statement of the reasons for the determination and the 
categories of information needed to make the petition complete. A 
frivolous petition is one in which the allegations of harm lack 
serious merit or available information shows that either no mineable 
coal resources exist in the petitioned area or the petitioned area 
is not or could not be subject to related surface coal mining 
operations and surface impacts incident to an underground coal mine 
or an adjoining surface mine.

    There is no Federal counterpart regulation to the language that is 
added to the above paragraph. However, we are approving the addition of 
the new language because it is not inconsistent with the Federal 
regulations at 30 CFR 764.15 pertaining to initial processing, 
recordkeeping, and notification requirements for petitions concerning 
lands unsuitable for mining.
2. TAC Sec. 12.80(b)(2) Public Notice and Hearing Procedures
    Texas proposed to remove paragraph (b)(2) that allows the 
Commission to provide for a hearing or a period of written comments on 
the completeness of petitions for designating areas as unsuitable for 
surface coal mining operations. As a result of the removal of this 
paragraph, Texas is redesignating paragraph (b)(3) as (b)(2). We are 
approving the amendments because there is no counterpart Federal 
regulation to paragraph (b)(2) and the removal of this paragraph and 
the redesignation of paragraph (b)(3) as (b)(2) will not make the Texas 
regulations less effective than the Federal regulations.

IV. Summary and Disposition of Comments

Federal Agency Comments

    On September 6, 2000, under section 503(b) of SMCRA and 30 CFR 
732.17(h)(11)(i) of the Federal regulations, we requested comments on 
the amendment from various Federal agencies with an actual or potential 
interest in the Texas program (Administrative Record No. TX-650.02). 
The Texas Parks and Wildlife Department Resource Protection Division 
responded on October 6, 2000 (Administrative Record No. TX-650.04), 
that its review of the proposed amendment indicates minimum impacts to 
fish and wildlife resources.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the 
written concurrence of the EPA for those provisions of the program 
amendment 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.). None of the revisions that 
Texas proposed to make in this amendment pertain to air or water 
quality standards. Therefore, we did not ask the EPA for its 
concurrence.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record No. TX-650.02) on 
September 6, 2000. The EPA did not respond to our request.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On September 6, 2000, we requested comments on Texas' 
amendment (Administrative Record No. TX-650.02), but neither responded 
to our request.

Public Comments

    We asked for public comments on the amendment, but did not receive 
any.

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Texas on August 24, 2000. We approve the regulations that Texas 
proposed with the provision that they be published in identical form to 
the regulations sent to and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 943, which codify decisions concerning the Texas 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage Texas to 
bring its program into conformity with the Federal standards. SMCRA 
requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

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 under SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and

[[Page 70489]]

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.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

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 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.

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.
    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 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 943

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 8, 2000.
Charles E. Sandberg,
Acting 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           Date of final publication              Citation/description
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*                  *                  *                  *                  *                  *
                                                        *
August 24, 2000........................  November 24, 2000......................  TAC Sec.  12.80(a)(1), (3)-
                                                                                   (7); (b)(2)-(3); Sec.
                                                                                   12.385(a); (e)-(e)(2)(D);
                                                                                   Sec.  12.552(a); (e)-
                                                                                   (e)(2)(D); and Sec.
                                                                                   12.651(13).
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[FR Doc. 00-29969 Filed 11-24-00; 8:45 am]
BILLING CODE 4310-05-P