[Federal Register Volume 67, Number 156 (Tuesday, August 13, 2002)]
[Proposed Rules]
[Pages 52664-52665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20466]


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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; reopening and extension of public comment period 
on proposed amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is announcing receipt of revisions to a previously proposed amendment 
to the Texas regulatory program (Texas program) under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). The revisions 
concern corrections of incorrect reference citations and the addition 
of two sentences to the proposed definition of ``valid existing rights 
(VER).'' Texas intends to revise its program to be consistent with the 
corresponding Federal regulations.

DATES: We will accept written comments until 4 p.m., c.d.t., August 28, 
2002.

ADDRESSES: You should mail or hand deliver written comments to Michael 
C. Wolfrom, Director, Tulsa Field Office at the address listed below.
    You may review copies of the Texas program, the amendment 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, 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 this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this 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 effective 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 of the Texas program in the February 27, 1980, Federal 
Register (45 FR 12998). You can also find later actions concerning the 
Texas program and program amendments at 30 CFR 943.10, 943.15 and 
943.16.

II. Discussion 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 (30 
U.S.C. 1201 et seq.). 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 proposed to amend Title 
16, Texas Administrative Code, Chapter 12.
    We announced receipt of the amendment in the September 20, 2001, 
Federal Register (66 FR 48396). 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 22, 2001.
    During our review of the amendment, we identified incorrect 
reference citations and a concern regarding Texas' proposed definition 
of ``valid existing rights.'' We notified Texas of these concerns by 
email dated September 24, 2001 (Administrative Record No. TX-653.04). 
By letters dated October 22, 2001, and June 5, 2002 (Administrative 
Record Nos. TX-653.05 and TX-653.06, respectively), Texas sent us 
additional explanatory information and revisions to its program 
amendment.
    Texas corrected the incorrect reference citations that we 
identified. The state also submitted a revision for its proposed 
definition of ``valid existing rights'' found at section 12.3(187). In 
paragraph (A) of this definition, Texas proposed to add two sentences 
so that the definition reads as follows:

    (A) Property rights demonstration. Except as provided in 
subparagraph (C) of this definition, a person claiming valid 
existing rights must demonstrate that a legally binding conveyance, 
lease, deed, contract, or other document vests that person or a 
predecessor in interest, with the right to conduct the type of 
surface coal mining operations intended. This right must exist at 
the time that the land came under the protection of Sec. 12.71(a) of 
this title or Sec. 134.022 of the Act. Applicable State statutory or 
case law will govern interpretation of documents relied upon to 
establish property rights. If no applicable State law exists, custom 
and generally accepted usage at the time and place that the 
documents came into existence will govern their interpretation.

III. Public Comment Procedures

    We are reopening the comment period on the proposed Texas program 
amendment to provide the public an opportunity to reconsider the 
adequacy of the proposed amendment in light of the additional materials 
submitted. 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 15-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

[[Page 52665]]

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.

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

    In this rule, the State is adopting valid existing rights standards 
that are similar to the standards in the Federal definition at 30 CFR 
761.5. Therefore, this rule has the same takings implications as the 
Federal valid existing rights rule. The taking implications assessment 
for the Federal valid existing rights rule appears in Part XXIX.E. of 
the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 
1999.

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 such 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.

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 (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: June 25, 2002.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 02-20466 Filed 8-12-02; 8:45 am]
BILLING CODE 4310-05-P