[Federal Register Volume 66, Number 183 (Thursday, September 20, 2001)]
[Proposed Rules]
[Pages 48396-48399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23504]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-048-FOR]


Texas Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is announcing receipt of a proposed amendment to the Texas regulatory 
program (Texas program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Texas proposes revisions to 
regulations concerning valid existing rights. Texas intends to revise 
its program to be consistent with the corresponding Federal 
regulations.
    This document gives the times and locations that the Texas program 
and the proposed amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments until 4 p.m., c.d.t., October 
22, 2001. If requested, we will hold a public hearing on the amendment 
on October 15, 2001. We will accept requests to speak at the hearing 
until 4 p.m., c.d.t. on October 5, 2001.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Michael C. Wolfrom, Director, Tulsa 
Field Office, at the address listed below.
    You may review copies of the Texas program, the amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Tulsa Field Office.
    Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface 
Mining, 5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547, 
Telephone: (918) 581-6430.
    Surface Mining and Reclamation Division, Railroad Commission of 
Texas, 1701 North Congress Avenue, Capitol Station, P.O. Box 12967, 
Austin, Texas 78711-2967, Telephone: (512) 463-6900.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. Internet: [email protected].

SUPPLEMENTARY INFORMATION:   

I. Background on the Texas 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 the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the 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 Texas program on February 16, 1980. 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. Description of the Proposed Amendment

    By letter dated July 25, 2001 (Administrative Record No. TX-
653.02), 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 August 23, 2000 (Administrative Record No. 
TX-653), that we sent to Texas under 30 CFR 732.17(c). Texas proposes 
to amend Title 16 Texas Administrative Code Chapter 12. Below is a 
summary of the changes proposed by Texas. The full text of the program 
amendment is available for your inspection at the locations listed 
above under ADDRESSES.

A. Section 12.3  Definitions

    Texas proposes to:
    1. Renumber the definitions in this section starting with the 
definition numbered (169),
    2. Delete the definition of ``surface coal mining operations which 
exist on the date of enactment,'' and
    3. Replace the definition of ``valid existing rights'' with a new 
definition of ``valid existing rights.''

B. Section 12.71  Areas Where Mining Is Prohibited or Limited

    Texas proposes to revise the section title to read, ``Areas where 
surface coal mining operations are prohibited or limited.'' Texas also 
proposes to delete the existing language in this section and replace it 
with new language.

C. Section 12.72  Procedures

    Texas proposes to revise the section title to read, ``Procedures 
for compatibility findings, public road closures and relocations, 
buffer zones, and valid existing rights determinations.'' Texas also 
proposes to delete the existing language in this section and replace it 
with new language.

D. Section 12.73  Responsibility

    1. Texas proposes to redesignate this section as new Section 12.74 
Responsibility.
    2. Texas proposes to revise the title of existing section 12.73 to 
read, ``Commission obligations at time of permit application review.'' 
Texas also proposes to add language in this section that establishes 
criteria for rejecting any portion of an application that would locate 
surface coal mining operations on protected lands and that establishes 
procedures for joint approval of mining operations that will adversely 
affect publicly owned parks or historic places.

E. Section 12.77  Exploration on Land Designated as Unsuitable for 
Surface Coal Mining Operations

    1. Texas proposes to revise the section title to read, 
``Applicability and restrictions on exploration on land designated as 
unsuitable for surface coal mining operations.''
    2. Texas proposes to designate the existing paragraph in this 
section as paragraph (b) Exploration restrictions.
    3. Texas proposes to add a new paragraph (a) to read as follows:

    (a) Applicability. Pursuant to appropriate petitions, lands 
listed in Sec. 12.71(a) of this title (relating to Areas Where 
Surface Coal Mining Operations Are Prohibited Or Limited) are 
subject to designation as unsuitable for all or certain types of 
surface coal mining operations under this Division and Division 4 of 
Subchapter F (relating to Lands Unsuitable for Mining).

[[Page 48397]]

F. Section 12.111  General Requirements: Exploration of More Than 250 
Tons

    1. Texas proposes to revise the section title to read, ``General 
requirements: Exploration that will remove more than 250 tons of coal 
or that will occur on lands designated as unsuitable for surface coal 
mining operations.''
    2. Texas proposes to add new paragraph (1)(H) to read as follows:

    (H) for any lands listed in Sec. 12.71(a) of this title 
(relating to Areas Where Surface Coal Mining Operations Are 
Prohibited or Limited), a demonstration that, to the extent 
technologically and economically feasible, the proposed exploration 
activities have been designed to minimize interference with the 
values for which those lands were designated as unsuitable for 
surface coal mining operations. The application must include 
documentation of consultation with the owner of the feature causing 
the land to come under the protection of Sec. 12.71(a) of this 
title, and, when applicable, with the agency with primary 
jurisdiction over the feature with respect to the values that caused 
the land to come under the protection of Sec. 12.71(a) of this 
title.

G. Section 12.112  Applications: Approval or Disapproval of Exploration 
of More Than 250 Tons

    1. Texas proposes to revise the section title to read, 
``Applications: Approval or disapproval of exploration of more than 250 
tons of coal or that will occur on lands designated as unsuitable for 
surface coal mining operations.''
    2. Texas proposes to add new paragraph (b)(4) that reads as 
follows:

    (4) with respect to exploration activities on any lands 
protected under Sec. 12.71(a) of this title (relating to Areas Where 
Surface Coal Mining Operations Are Prohibited or Limited), minimize 
interference, to the extent technologically and economically 
feasible, with the values for which those lands were designated as 
unsuitable for surface coal mining operations. Before making this 
finding, the Commission must provide reasonable opportunity to the 
owner of the feature causing the land to come under the protection 
of Sec. 12.71(a) of this title, and, when applicable, to the agency 
with primary jurisdiction over the feature with respect to the 
values that caused the land to come under the protection of 
Sec. 12.71(a) of this title, to comment on whether the finding is 
appropriate.

H. Section 12.113  Applications: Notice and Hearing for Exploration of 
More Than 250 Tons

    Texas proposes to add a phrase to paragraph (a) that requires the 
Commission to notify those who comment on the exploration permit 
application of the Commission's decision to approve or disapprove the 
application.

I. Section 12.118  Relationship to Areas Designated Unsuitable for 
Mining

    1. Texas proposes to revise paragraph (a) to read as follows:

    (a) Each application shall contain available information on 
whether the proposed permit area is within an area designated 
unsuitable for surface coal mining and reclamation or is within an 
area under study for designation in an administrative proceeding 
under Secs. 12.74-12.77 of this title (relating to Criteria for 
Designating Areas as Unsuitable for Surface Coal Mining Operations) 
and Secs. 12.78-12.85 of this title (relating to Process for 
Designating Areas as Unsuitable for Surface Coal Mining Operations).

    2. Texas proposes to revise paragraph (c) to read as follows:

    (c) If an applicant proposes to conduct surface coal mining 
activities within 100 feet of a public road or within 300 feet of an 
occupied dwelling, the application must meet the requirements of 
Sec. 12.72(a) or (b) of this title (relating to Procedures For 
Compatibility Findings, Public Road Closures and Relocations, Buffer 
Zones, And Valid Existing Rights Determinations), respectively.

J. Section 12.151 and Section 12.191 Protection of Public Parks and 
Historic Places

    Texas proposes to delete the existing language in paragraphs (a)(2) 
and replace it with the following language:

    (2) If a person has valid existing rights, as determined under 
Sec. 12.72(c) of this title (relating to Procedures For 
Compatibility Findings, Public Road Closures and Relocations, Buffer 
Zones, And Valid Existing Rights Determinations), or if joint agency 
approval is to be obtained under Sec. 12.73(d) of this title 
(relating to Commission Obligations at Time of Permit Application 
Review), to minimize adverse impacts.

K. Section 12.152 and Section 12.192 Relocation or Use of Public Roads

    Texas proposes to revise the existing language in the introductory 
paragraphs to read as follows:

    Each application shall describe, with appropriate maps and cross 
sections, the measures to be used to ensure that the interests of 
the public and landowners affected are protected if, under 
Sec. 12.72(a) of this title (relating to Procedures For 
Compatibility Findings, Public Road Closures and Relocations, Buffer 
Zones, And Valid Existing Rights Determinations), the applicant 
seeks to have the Commission approve:

L. Section 12.158  Relationship to Areas Designated Unsuitable for 
Mining

    1. Texas proposes to revise paragraph (a) to read as follows:

    (a) Each application shall contain available information on 
whether the proposed permit area is within an area designated 
unsuitable for surface coal mining and reclamation or is within an 
area under study for designation in an administrative proceeding 
under Secs. 12.73-12.77 of this title (relating to Criteria for 
Designating Areas as Unsuitable for Surface Coal Mining Operations) 
and Secs. 12.78-12.85 of this title (relating to Process for 
Designating Areas as Unsuitable for Surface Coal Mining Operations).

    2. Texas proposes to revise paragraph (c) to read as follows:

    (c) A application that proposes to conduct surface coal mining 
activities within 100 feet of a public road or within 300 feet of an 
occupied dwelling must meet the requirements of Sec. 12.72(a) or (b) 
of this title (relating to Procedures For Compatibility Findings, 
Public Road Closures and Relocations, Buffer Zones, And Valid 
Existing Rights Determinations), respectively.

M. Section 12.207  Public Notices of Filing of Permit Applications

    Texas proposes to revise paragraph (a)(5) to read as follows:

    (5) if an applicant seeks a permit to mine within 100 feet of 
the outside right-of-way of a public road or to relocate or close a 
public road, except where public notice and hearing have previously 
been provided for this particular part of the road in accordance 
with Sec. 12.72(a) of this title (relating to Procedures For 
Compatibility Findings, Public Road Closures and Relocations, Buffer 
Zones, And Valid Existing Rights Determinations), a concise 
statement describing the public road, the particular part to be 
relocated or closed, where the relocation or closure is to occur, 
and the duration of the relocation or closure.

N. Section 12.216  Criteria for Permit Approval or Denial

    Texas proposes to revise paragraphs (4)(A)-(E) and paragraph (5) to 
read as follows:

    (4) the proposed permit area is:
    (A) not included within an area designated unsuitable for 
surface coal mining operations under Secs. 12.74-12.77 of this title 
(relating to Criteria for Designating Areas as Unsuitable for 
Surface Coal Mining Operations) and Sec. 12.78-12.85 of this title 
(relating to Process for Designating Areas as Unsuitable for Surface 
Coal Mining Operations) or within an area subject to the 
prohibitions of Sec. 12.71(a) of this title (relating to Areas Where 
Surface Coal Mining Operations Are Prohibited Or Limited); or
    (B) not within an area under study for designation as unsuitable 
for surface coal mining operations or in an administrative 
proceeding begun under Secs. 12.78-12.85 of this title (relating to 
Process for Designating Areas as Unsuitable for Surface Coal Mining 
Operations), unless the applicant demonstrates that, before January 
4, 1977, he or she made substantial legal and financial commitments 
in relation to the operation for which he or she is applying for a 
permit; or
    (C) not on any lands subject to the prohibitions or limitations 
of Sec. 12.71(a)(1), (a)(6) or (a)(7) of this title; or
    (D) not within 100 feet of the outside right-of-way line of any 
public road, except as

[[Page 48398]]

provided for in Sec. 12.72(a) of this title (relating to Procedures 
For Compatibility Findings, Public Road Closures and Relocations, 
Buffer Zones, And Valid Existing Rights Determinations); or
    (E) not within 300 feet from any occupied dwelling, except as 
provided for in Sec. 12.71(a)(5) of this title;
    (5) the proposed operations will not adversely affect any 
properties listed on and eligible for listing on the National 
Register of Historic Places, except as provided for in 
Sec. 12.71(a)(3) of this title. This finding may be supported in 
part by inclusion of appropriate permit conditions, revisions in the 
operation plan, or a documented decision by the Commission that no 
additional protection measures are required under the National 
Historic Preservation Act;

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking comments 
on whether the proposed amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Texas program.
    Written Comments: If you submit written or electronic comments on 
the proposed rule during the 30-day comment period, they should be 
specific, should be confined to issues pertinent to the notice, and 
should explain the reason for your recommendation(s). We may not be 
able to consider or include in the Administrative Record comments 
delivered to an address other than the one listed above (see 
ADDRESSES).
    Electronic Comments: Please submit Internet comments as an ASCII, 
WordPerfect, or Word file avoiding the use of special characters and 
any form of encryption. Please also include ``Attn: SPATS NO. TX-048-
FOR'' and your name and return address in your Internet message. If you 
do not receive a confirmation that we have received your Internet 
message, contact the Tulsa Field Office at (918) 581-6430.
    Availability of Comments: Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours at OSM's Tulsa Field Office (see 
ADDRESSES). Individual respondents may request that we withhold their 
home address from the administrative record, which we will honor to the 
extent allowable by law. There also may be circumstances in which we 
would withhold from the administrative record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.
    Public Hearing: If you wish to speak at the public hearing, contact 
the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., 
c.d.t. on October 5, 2001. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak at the public hearing, the hearing will not be 
held.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her testimony. The public 
hearing will continue on the specified date until all persons scheduled 
to speak have been heard. If you are in the audience and have not been 
scheduled to speak and wish to do so, you will be allowed to speak 
after those who have been scheduled. We will end the hearing after all 
persons scheduled to speak and persons present in the audience who wish 
to speak have been heard.
    If you are disabled and need a special accommodation to attend a 
public hearing, contact the person listed under FOR FURTHER INFORMATION 
CONTACT.
    Public Meeting: If only one person requests an opportunity to speak 
at a hearing, a public meeting, rather than a public hearing, may be 
held. If you wish to meet with us to discuss the proposed amendment, 
you may request a meeting by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT. All such meetings are open to the public 
and, if possible, we will post notices of meetings at the locations 
listed under ADDRESSES. We will also make a written summary of each 
meeting a part of the Administrative Record.

IV. 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 has determined that, to the 
extent allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of this section. However, these standards are 
not applicable to the actual language of State regulatory programs and 
program amendments since each program is drafted and promulgated by a 
specific State, not 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.

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

    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

[[Page 48399]]

Environmental Policy Act (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. Therefore, 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: August 10, 2001.
Malcolm Ahrens,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 01-23504 Filed 9-19-01; 8:45 am]
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