[Federal Register Volume 68, Number 69 (Thursday, April 10, 2003)]
[Proposed Rules]
[Pages 17566-17569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8807]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[TX-043-FOR]


Texas Regulatory Program

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

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

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are 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 to add a new 
rule to its administrative hearing procedures concerning telephonic 
hearing proceedings. Texas intends to revise its program to improve 
operational efficiency.
    This document gives the times and locations that the Texas program 
and 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 on this amendment until 4 p.m., 
c.s.t. May 12, 2003. If requested, we will hold a public hearing on the 
amendment on May 5, 2003. We will accept requests to speak at a hearing 
until 4 p.m., c.s.t. on April 25, 2003.

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, this 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 Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470, 
Tulsa, Oklahoma 74135-6547, Telephone: (918) 581-6430, Internet 
address: [email protected].
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 address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the Texas Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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 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. Description of the Proposed Amendment

    By letter dated February 12, 2003 (Administrative Record No. TX-
654), Texas sent us an amendment to its program under SMCRA (30 U.S.C. 
1201 et seq.). Texas sent the amendment at its own initiative. Texas is 
proposing to add Texas Administrative Code (TAC) 1.130 to Title 16, 
Subchapter G, of the Railroad Commission of Texas' (Commission) General 
Rules of Practice and Procedure (GRPP). This new rule contains the 
procedures for conducting all or part of a prehearing conference or 
hearing by telephone. Below is a summary of the new rule proposed by 
Texas. The full text of the program amendment is available for you to 
read at the locations listed above under ADDRESSES.
    A. Texas' new rule at 16 TAC 1.130 outlines the method to request a 
telephonic proceeding, how the proceeding will be conducted, the 
establishment of the record in such proceedings, and the grounds for a 
default judgment or a dismissal.
    1. Section 1.130(a) allows the hearings examiner, on the timely 
written motion of a party or on the examiner's own motion, to conduct 
all or part of a prehearing conference or hearing by telephone. All 
parties must consent to the telephonic proceeding.
    2. Section 1.130(b) requires a written request that is filed at the 
Commission and served on all parties. The request must include the 
pertinent telephone number(s), the scope of the telephonic portion of 
the proceeding, and the identity of any witnesses that may testify 
telephonically. If expert

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witnesses will testify, the request must include their qualifications 
to testify as experts.
    3. Section 1.130(c) requires the hearings examiner to ensure that 
the proceeding is fair and provides due process. In determining if it 
is feasible to conduct all or part of a proceeding telephonically, the 
hearings examiner must take into account the following factors: (1) 
Timeliness of a party's request; (2) receipt of written agreements from 
all parties to conduct all or part of the proceeding by telephone; (3) 
demonstrations from the parties on how witnesses will be separated, how 
coaching of witnesses will be prevented, why observing only a witness's 
oral demeanor is sufficient, and how the witnesses' and parties' 
identities will be established; (4) the number of parties and the 
number of witnesses; (5) the number and type of exhibits; (6) the 
distance of the parties or witnesses from Austin; (7) the nature of the 
hearing; and (8) any other pertinent factors which the hearings 
examiner believes may affect the proceeding.
    4. Section 1.130(d) requires the hearings examiner to notify the 
parties, not less than ten days before the proceeding, of his or her 
decision to conduct all or part of a proceeding telephonically.
    5. Section 1.130(e) requires the parties to file and serve all 
documentary evidence, other than prefiled written testimony, in advance 
of the proceeding.
    6. Section 1.130(f) specifies that, subject only to the limitation 
of the physical arrangement, all substantive and procedural rights 
apply to telephonic proceedings.
    7. Section 1.130(g) requires that the time and location of 
telephonic proceedings be posted. Any person may, by advance request, 
be present in the room with the hearings examiner.
    8. Section 1.130(h) requires the hearings examiner to conduct 
telephonic proceedings using a speaker telephone. The hearings examiner 
must make a tape recording of the telephonic proceeding, or arrange to 
have the proceeding recorded by a court reporter.
    9. Section 1.130(i) requires the hearings examiner to initiate the 
telephonic proceeding, including arranging any necessary conference 
call. When all parties appearing telephonically are connected, the 
hearings examiner will affirm the parties' consent to the telephonic 
proceeding. The hearings examiner will then call the proceeding to 
order; ask all parties to identify themselves, their locations, and 
their witnesses; affirm on the record the prior written agreement from 
all parties consenting to the telephonic appearance or proceeding; and 
state whether the proceeding is being tape recorded or whether a court 
reporter is recording the proceeding. The hearings examiner will 
administer the oath to each witness individually before his or her 
testimony.
    10. Section 1.130(j) provides that if the hearings examiner is 
prevented from connecting all parties through circumstances that are 
beyond the control of any party or the examiner, the examiner may 
postpone, continue, or recess the proceeding, as appropriate, until the 
earliest possible date and time for the proceeding to be reconvened.
    11. Section 1.130(k) provides that if the hearings examiner decides 
or any party requests not to proceed with the telephonic proceeding at 
any time, or asserts that the presence of the parties or witnesses in 
the hearing room is necessary for full disclosure of the facts, the 
hearings examiner may postpone, continue, or recess the proceedings, as 
appropriate. The hearings examiner must reschedule the proceedings to 
the earliest possible date and time. The examiner must state on the 
record or in writing to all parties the reasons for terminating the 
telephonic proceeding and state the date, time, and location of the 
reconvened proceeding.
    12. Section 1.130(l) provides that the Commission may consider the 
following events to constitute a failure to appear and grounds for 
default or dismissal: (1) Failure to answer the telephone for more than 
10 minutes after the scheduled time for the proceeding; (2) failure to 
free the telephone for the proceeding for more than 10 minutes after 
the scheduled time for the proceeding; (3) failure to be ready to 
proceed with the proceeding within 10 minutes of the scheduled time; 
and (4) a party's intentional disconnection from the conference call.
    13. Finally, Section 1.130(m) specifies that in the event of 
accidental disconnection of one or more parties to the proceeding, the 
hearings examiner will immediately recess the hearing and attempt to 
re-establish the connection or connections. If reconnection is achieved 
within 30 minutes, the hearings examiner may resume the telephonic 
hearing, or may postpone, continue, or recess the proceedings, as 
appropriate, until the earliest possible date and time for the 
proceeding to be reconvened. The examiner must state on the record the 
date, time, and location of the reconvened proceeding. If reconnection 
cannot be achieved, then the hearings examiner must recess the 
telephonic proceeding and reschedule the hearing.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We will not consider or respond to 
your comments when developing the final rule if they are received after 
the close of the comment period (see DATES). We will make every attempt 
to log all comments into the administrative record, but comments 
delivered to an address other than the Tulsa Field Office may not be 
logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Microsoft Word file 
avoiding the use of special characters and any form of encryption. 
Please also include ``Attn: TX-043-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

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their 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 review 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.s.t. on April 
25, 2003. If you are disabled and need special accommodations to attend 
a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the

[[Page 17568]]

hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be 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 everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please 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 make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the fact that the telephonic hearing provisions proposed by 
Texas are administrative and procedural in nature and are not expected 
to have a substantive effect on the regulated industry.

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. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
This determination is based on the fact that the Texas program does not 
regulate coal exploration and surface coal mining and reclamation 
operations on Indian lands. Therefore, the Texas program has no effect 
on Federally recognized Indian tribes.

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 OMB 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.). 
This determination is based upon the fact that the telephonic hearing 
provisions proposed by Texas are administrative and procedural in 
nature and are not expected to have a substantive effect on the 
regulated industry.

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 governmental 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 
telephonic hearing provisions proposed by Texas are administrative and 
procedural in nature and are not expected to have a substantive effect 
on the regulated industry.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the 
telephonic hearing provisions proposed by Texas are

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administrative and procedural in nature and are not expected to have a 
substantive effect on the regulated industry.

List of Subjects in 30 CFR Part 943

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 27, 2003.
Ervin J. Barchenger,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 03-8807 Filed 4-9-03; 8:45 am]
BILLING CODE 4310-05-P