[Federal Register Volume 68, Number 129 (Monday, July 7, 2003)]
[Rules and Regulations]
[Pages 40154-40157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17082]


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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: 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). The Railroad Commission of Texas, Surface 
Mining and Reclamation Division (Texas or Commission) proposed to add a 
new rule to its administrative hearing procedures concerning telephonic 
hearing proceedings. Texas intends to revise its program to improve 
operational efficiency.

EFFECTIVE DATE: July 7, 2003.

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. Submission of the 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 State 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, in the February 27, 1980, Federal Register (45 FR 12998). 
You can find later actions on the Texas program at 30 CFR 943.10, 
943.15, and 943.16.

II. Submission of the 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 
proposed to add Texas Administrative Code (TAC) 1.130 to Title 16, 
Subchapter G, of its General Rules of Practice and Procedure. This new 
rule contains the procedures for conducting all or part of a prehearing 
conference or hearing by telephone.
    We announced receipt of the proposed amendment in the April 10, 
2003, Federal Register (69 FR 17566). 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 amendment. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on May 12, 2003. We did not receive any public 
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 as described below.

16 TAC 1.130 Telephonic Proceedings

    As shown below, the Commission's rule at 16 TAC 1.130 outlines the 
method to request a telephonic

[[Page 40155]]

proceeding, how the proceeding will be conducted, the establishment of 
the record in such a proceeding, and the grounds for a default judgment 
or a dismissal.

    (a) The hearings examiner, on the timely written motion of a 
party or on the examiner's own motion and with the consent of all 
parties to a protested proceeding, may conduct all or part of a 
prehearing conference or hearing by telephone.
    (b) A party may request to appear at a prehearing conference or 
a hearing by telephone.
    (1) All motions requesting a telephonic appearance or proceeding 
shall be in writing, shall be filed at the commission and served on 
all parties not less than 20 days prior to the proceeding, and shall 
include the pertinent telephone number(s).
    (2) If the request is to conduct only a portion of the 
proceeding by telephonic means, the requesting party shall specify 
the part of the proceeding to be conducted telephonically.
    (3) If the proceeding involves testimony, the requesting party 
shall identify the witnesses and, for expert witnesses, their 
qualifications to testify as experts.
    (4) Responses to a request for telephonic appearance shall be 
made in accordance with Sec.  1.28 of this title (relating to 
Responsive Pleadings and Emergency Action).
    (5) Upon agreement of the parties or a finding of good cause, 
the examiner may modify the times for filing a request for 
telephonic appearance and/or responses to such a request, and for 
filing witness information.
    (c) In considering whether conducting all or part of a 
prehearing conference or hearing by telephone is feasible, the 
hearings examiner shall ensure that the telephonic hearing will 
provide due process and will be fair, and shall take into account 
the following factors:
    (1) whether a party's request for such is timely;
    (2) whether all parties to a protested proceeding have agreed in 
writing, filed no later than ten days prior to the proceeding, to 
conducting all or part of the proceeding via telephone;
    (3) whether the parties have demonstrated:
    (A) how witnesses will be separated;
    (B) how coaching of witnesses will be prevented;
    (C) why observing a witness's oral demeanor is adequate to make 
a reliable determination of the truth of the witness's testimony; 
and
    (D) how the witnesses' and parties' identities will be 
established;
    (4) the number of parties;
    (5) the number of witnesses;
    (6) the number and type of exhibits;
    (7) the distance of the parties or witnesses from Austin;
    (8) the nature of the hearing; and
    (9) any other pertinent factors which the examiner believes may 
affect the proceeding.
    (d) The hearings examiner shall issue a ruling not less than ten 
days prior to the proceeding stating whether the proceeding will be 
conducted, in whole or in part, telephonically. In addition, the 
examiner shall notify all parties by telephone or by facsimile 
transmission of the ruling. The parties may waive this notice 
deadline.
    (e) Unless otherwise directed by the hearings examiner, the 
proponent of any documentary evidence other than prefiled written 
testimony filed pursuant to the provisions of Sec.  1.105 of this 
title (relating to Written Testimony) shall serve copies of that 
evidence on all parties and the hearings examiner no later than five 
business days prior to the telephonic proceeding. All documentary 
evidence shall be clearly labeled with the name of the sponsoring 
party and a unique document number. With the consent of the hearings 
examiner, a party may supplement or amend evidence less than three 
days prior to the proceeding or during the proceeding.
    (f) All substantive and procedural rights apply to telephonic 
proceedings, subject only to the limitations of the physical 
arrangement.
    (g) The time and location of telephonic proceedings shall be 
properly posted, and any person may, by advance request, be present 
in the room with the hearings examiner.
    (h) The hearings examiner shall conduct telephonic proceedings 
using a speaker telephone. The hearings examiner shall make a tape 
recording of the telephonic proceeding, or the proceeding may be 
recorded by a court reporter by prior arrangement, pursuant to Sec.  
1.129 of this title (relating to Reporters and Transcripts).
    (i) The telephonic proceeding, including arranging the 
conference call, shall be initiated by the hearings examiner. When 
all parties appearing telephonically are connected, the hearings 
examiner shall affirm the parties' consent to the telephonic 
proceeding.
    (1) The hearings examiner shall then call the proceeding to 
order and ask for all parties to identify themselves, their 
locations, and their witnesses.
    (2) The hearings examiner shall affirm on the record the prior 
written agreement from all parties consenting to the telephonic 
appearance or proceeding and shall state whether the proceeding is 
being memorialized by means of a tape recording or transcription of 
the proceeding.
    (3) The hearings examiner shall administer the oath to each 
witness individually, prior to his or her testimony.
    (j) If the hearings examiner is prevented from establishing the 
telephonic connection for the proceeding through circumstances which 
are beyond the control of any party or the examiner; which cannot be 
attributed to any party's intentional or negligent conduct; and 
which continue for at least 30 minutes past the time for beginning 
the hearing, the hearings examiner may postpone, continue, or recess 
the proceeding, as the hearings examiner deems appropriate, until 
the earliest possible date and time for the proceeding to be 
reconvened. The hearings examiner shall state on the record or in 
writing to all parties the date, time, and location of the 
reconvened proceeding.
    (k) 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 one or more of the parties or witnesses in the 
hearing room is necessary for full disclosure of the facts and 
states the reasons for such an assertion, the hearings examiner may 
postpone, continue, or recess the proceeding, as the hearings 
examiner deems appropriate, until the earliest possible date and 
time for the proceeding to be reconvened with all participants 
present in person. The examiner shall state on the record and in 
writing to all parties the reasons for terminating the telephonic 
proceeding and the date, time, and location of the reconvened 
proceeding.
    (l) 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 call.
    (m) In the event of accidental disconnection of one or more 
parties to the proceeding, the hearings examiner shall immediately 
recess the hearing and attempt to re-establish the connection or 
connections.
    (1) If reconnection is achieved within 30 minutes, the hearings 
examiner may resume the telephonic hearing, or may postpone, 
continue, or recess the proceeding, as the hearings examiner deems 
appropriate, until the earliest possible date and time for the 
proceeding to be reconvened. The examiner shall state on the record 
or in writing to all parties the date, time, and location of the 
reconvened proceeding.
    (2) If reconnection cannot be achieved within 30 minutes, then 
the hearings examiner shall recess the telephonic proceeding until a 
date and time certain and at a location specified in a written 
notice of reconvened hearing.

    There are no Federal counterparts to the Commission's proposal to 
conduct all or part of a prehearing conference or administrative 
hearing by telephone. Neither SMCRA at section 525 nor the Federal 
regulations at 30 CFR 775.11 and 43 CFR part 4 address telephonic 
proceedings. However, nothing in the Commission's proposed rule 
supersedes or replaces its previously approved general rules of 
practice and procedures for hearings. The Commission is merely offering 
another method by which parties may appear at prehearing conferences or 
hearings. The proposed procedures for telephonic proceedings will 
provide due process for all parties involved in a prehearing conference 
or hearing. As stated in 16 TAC 1.130(c), the hearings examiner must 
ensure that the telephonic hearing will provide due process and will be 
fair. Black's Law Dictionary, Seventh Edition, defines due

[[Page 40156]]

process as the conduct of legal proceedings according to established 
rules and principles for the protection and enforcement of private 
rights, including notice and the right to a fair hearing before a 
tribunal with the power to decide the case. Also, as provided in 16 TAC 
1.130(f), all substantive and procedural rights apply to telephonic 
proceedings. While there are no Federal counterpart provisions 
concerning telephonic proceedings, we find that the provisions of the 
proposed rule at 16 TAC 1.130 are not inconsistent with the Federal 
general rules relating to procedure and practice for administrative 
hearings found at 30 CFR 775.11(b)(3), 43 CFR 4.20-4.24, and 43 CFR 
4.1104-4.1115. Therefore, we are approving them.

IV. Summary and Disposition of Comments

Public Comments

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

Federal Agency Comments

    On February 26, 2003, under 30 CFR 732.17(h)(11)(i) 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 No. TX-654.01). We did not receive any 
comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    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.
    On February 26, 2003, under 30 CFR 732.17(h)(11)(i), we requested 
comments on the amendment from the EPA (Administrative Record No. TX-
654.01). 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 February 26, 2003, we requested comments on Texas' 
amendment (Administrative Record No. TX-654.01), but neither responded 
to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Texas sent us 
on February 12, 2003.
    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. Section 503(a) of SMCRA 
requires that the State's program demonstrate 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

    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 (OMB) 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

    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

[[Page 40157]]

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 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: June 5, 2003.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 943 is amended as 
set forth below:

PART 943--TEXAS

0
1. The authority citation for part 943 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.

0
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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                                                  * * * * * * *
February 12, 2003.......................  July 7, 2003...................  16 TAC Sec.   1.130
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[FR Doc. 03-17082 Filed 7-3-03; 8:45 am]
BILLING CODE 4310-05-P