[Federal Register Volume 67, Number 215 (Wednesday, November 6, 2002)]
[Rules and Regulations]
[Pages 67531-67534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28199]


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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: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving an amendment to the Texas regulatory program 
(Texas program) under the Surface Mining Control and Reclamation Act of 
1977 (SMCRA or the Act). Texas proposed revisions to its regulations 
concerning valid existing rights. Texas intends to revise its program 
to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: November 6, 2002.

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 Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

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. Submission 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. We did not receive any 
comments and did not hold a public hearing or meeting because no one 
requested one.
    During our review of the amendment, we identified incorrect 
reference citations and concerns relating to the definition of ``valid 
existing rights.'' We notified Texas of these concerns by an e-mail 
dated September 24, 2001, and a letter dated June 14, 2002 
(Administrative Record Nos. TX-653.04 and TX-653.07, respectively). By 
letters dated October 22, 2001, June 5, 2002, and June 18, 2002 
(Administrative Record Nos. TX-653.05, TX-653.06, and TX-653.08, 
respectively), Texas sent us additional explanatory information and 
revisions to its program amendment.
    Based upon Texas' additional explanatory information and revisions 
to its amendment, we reopened the public comment period in the August 
13, 2002, Federal Register (67 FR 52664). The public comment period 
closed on August 28, 2002. We did not receive any comments.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment. Any revisions that we do not specifically 
discuss below concern nonsubstantive wording or editorial 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 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.

[[Page 67532]]



------------------------------------------------------------------------
                                                            Federal
              Topic                State regulation       counterpart
                                                          regulation
------------------------------------------------------------------------
 Areas where surface coal mining  Section 12.71(a),   30 CFR 761.11, 30
 operations are prohibited or      Section 12.71(b).   CFR 761.12.
 limited.
 Procedures for compatibility     Section 12.72(a),   30 CFR 761.14, 30
 findings, public road closures    Section 12.72(b),   CFR 761.15, 30
 and relocations, buffer zones,    Section 12.72(c).   CFR 761.16.
 and valid existing rights
 determinations.
 Commission obligations at time   Section 12.73.....  30 CFR 761.17.
 of permit application review.
 Applicability and restrictions   Section 12.77(a),   30 CFR 762.14, 30
 on exploration on land            Section 12.77(b).   CFR 762.15.
 designated as unsuitable for
 surface coal mining operations.
 General requirements:            Section             30 CFR
 Exploration that will remove      12.111(1)(H).       772.12(b)(14).
 more than 250 tons of coal or
 that will occur on lands
 designated as unsuitable for
 surface coal mining operations.
 Applications: Approval or        Section             30 CFR
 disapproval of exploration of     12.112(b)(4).       772.12(d)(2)(iv).
 more than 250 tons of coal or
 that will occur on lands
 designated as unsuitable for
 surface coal mining operations.
 Applications: Notice and         Section 12.113(a).  30 CFR
 hearing for exploration of more                       772.12(e)(1).
 than 250 tons.
 Relationship to areas            Section 12.118(a)   30 CFR 778.16(a)
 designated unsuitable for         and (c).            and (c).
 mining (surface mining).
 Protection of public parks and   Section             30 CFR
 historic places (surface          12.151(a)(2).       780.31(a)(2).
 mining).
 Relationship to areas            Section 12.158(a)   30 CFR 778.16(a)
 designated unsuitable for         and (c).            and (c).
 mining (underground mining).
 Protection of public parks and   Section             30 CFR
 historic places (underground      12.191(a)(2).       784.17(a)(2).
 mining).
 Public notices of filing of      Section             30 CFR
 permit applications.              12.207(a)(5).       773.13(a)(1)(v).
 Criteria for permit approval or  Section             30 CFR
 disapproval.                      12.216(4)(A).       773.15(c)(3)(ii).
------------------------------------------------------------------------

    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. Therefore, we are approving 
them.

B. Texas Administrative Code (TAC) Section 12.3 Definitions

    1. Texas proposed to remove its definition of ``surface coal mining 
operations which exist on the date of enactment'' found at TAC section 
12.3(169). As a result of the removal of this definition, the State 
proposed to renumber the remaining definitions in this section. We are 
approving the removal of this definition and the subsequent renumbering 
of the remaining definitions because we removed the definition of 
``surface coal mining operations which exist on the date of enactment'' 
from the Federal regulations at 30 CFR 761.5. Please see the Federal 
Register dated December 17, 1999 (64 FR 70831).
    2. Texas proposed to revise its definition of ``valid existing 
rights'' found at TAC section 12.3(187) to be consistent with the 
corresponding Federal definition of ``valid existing rights.''
    On December 17, 1999 (64 FR 70766), we published our final rule 
redefining the circumstances under which a person has valid existing 
rights to conduct surface coal mining operations on lands listed in 
section 522(e) of SMCRA. This section prohibits or restricts surface 
coal mining operations on certain lands. Our final rule included a 
revised definition of valid existing rights found at 30 CFR 761.5. In 
paragraph (a) of this revised definition, we added a clause clarifying 
that the provisions requiring the use of state law to interpret 
documents does not apply if federal law provides otherwise. The clause 
reads, ``unless Federal law provides otherwise.'' Texas' proposed 
definition of ``valid existing rights'' is substantively the same as 
the Federal definition, except that the State did not include this 
clause in its proposed definition. Though it is unlikely that Texas 
will have to make a determination of ``valid existing rights'' that 
will require the State to use applicable federal law to interpret 
documents relied upon to establish property rights, Texas sent us a 
letter dated June 18, 2002 (Administrative Record No. TX-653.08), 
clarifying that it will make any such determinations using the 
applicable federal law. Because Texas' proposed definition of ``valid 
existing rights'' is substantively the same as the Federal definition 
of ``valid existing rights,'' we are approving it.

C. TAC Section 12.74 Responsibility (Formerly Section 12.73)

    Texas proposed to redesignate existing section 12.73 as new section 
12.74. We are approving the redesignation because it does not change 
the content of the previously approved regulation in any way.

IV. Summary and Disposition of Comments

Public Comments

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

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) of the Federal regulations and 
section 503(b) of SMCRA, we requested comments on the amendment from 
various Federal agencies with an actual or potential interest in the 
Texas program (Administrative Record Nos. TX-653.03 and TX-653.10). We 
did not receive any comments.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from 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 EPA to concur on the amendment.

[[Page 67533]]

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record Nos. TX-653.03 and TX-
653.10). 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 August 6, 2001, we requested comments on Texas' 
amendment (Administrative Record Nos. TX-653.03 and TX-653.10), but 
neither responded to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Texas on July 25, 2001, and as revised on October 22, 2001, and June 
5, 2002.
    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 find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. SMCRA requires that the 
State's program demonstrates that the State has the capability of 
carrying out the provisions of the Act and meeting its purposes. Making 
this rule effective immediately will expedite that process. SMCRA 
requires consistency of State and Federal standards.

VI. Procedural Determinations

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 12866--Regulatory Planning and Review

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

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 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 because 
each 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 
the Federal regulations at 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 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 pursuant to SMCRA.

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

    This rule does not require an environmental impact statement 
because 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 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 certifies 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. 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; and (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 an unfunded mandate on State, local, or

[[Page 67534]]

tribal governments or the private sector cost of $100 million or more 
in any given year. 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 did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 943

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 20, 2002.
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.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
July 25, 2001.................  November 6, 2002.  Sections 12.3(169)
                                                    definition of
                                                    ``surface coal
                                                    mining operations
                                                    which exist on the
                                                    date of enactment
                                                    [removed] and
                                                    12.3(187) definition
                                                    of ``valid existing
                                                    rights;'' 12.71-.74;
                                                    12.77; 12.111(1)(H);
                                                    12.112(b)(4);
                                                    12.113(a); 12.118(a)
                                                    and (c);
                                                    12.151(a)(2);
                                                    12.158(a) and (c);
                                                    12.191(a)(2);
                                                    12.207(a)(5); and
                                                    12.216(4)(A).
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[FR Doc. 02-28199 Filed 11-5-02; 8:45 am]
BILLING CODE 4310-05-P