[Federal Register Volume 70, Number 168 (Wednesday, August 31, 2005)]
[Proposed Rules]
[Pages 51689-51692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17337]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[Docket No. TX-054-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 revise 
its fish and wildlife habitat revegetation guidelines by adding 
technical standards for reclaiming mined land to habitat suitable for 
bobwhite quail and other grassland bird species and by making 
associated changes to existing guidelines. Texas intends to revise its 
program to encourage reclamation practices that are suitable for 
grassland bird species.
    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

[[Page 51690]]

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.d.t., September 30, 2005. If requested, we will hold a public hearing 
on the amendment on September 26, 2005. We will accept requests to 
speak at a hearing until 4 p.m., c.d.t. on September 15, 2005.

ADDRESSES: You may submit comments, identified by Docket No. TX-054-
FOR, by any of the following methods:
     E-mail: [email protected]. Include ``Docket No. TX-054-
FOR'' in the subject line of the message.
     Mail/Hand Delivery: Michael C. Wolfrom, Director, Tulsa 
Field Office, Office of Surface Mining Reclamation and Enforcement, 
5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547.
     Fax: (918) 581-6419.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to 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, you 
must go to the address 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. E-mail: 
[email protected].
    In addition, you may review a copy of the amendment during regular 
business hours at the following location:
    Surface Mining and Reclamation Division, Railroad Commission of 
Texas, 1701 North Congress Avenue, Austin, Texas 78711-2967. Telephone: 
(512) 463-6900.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. E-mail: [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 July 26, 2005 (Administrative Record No. TX-659), 
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. Below is a 
summary of the changes proposed by Texas. The full text of the program 
amendment is available for you to read at the locations listed above 
under ADDRESSES.

A. Section V. Revegetation Success Standards

    At the request of the Texas Parks and Wildlife Department, Texas 
proposes to revise the following provisions in Section V of its April 
1999 revegetation guidelines document entitled ``Procedures and 
Standards for Determining Revegetation Success on Surface-Mined Lands 
in Texas'':
1. D.1 Fish and Wildlife Habitat--Ground Cover
    At Section V.D.1, Texas proposes to add a ground cover technical 
standard for bobwhite quail and other grassland bird species and other 
associated changes. Texas also proposed to make some minor clarifying 
changes to existing provisions.
    a. Texas proposes to change the heading of the third paragraph from 
``Use of Technical Standard'' to ``Use of General Technical Standard.''
    b. Texas proposes to add two new paragraphs concerning the 
technical standard for bobwhite quail and other grassland bird species. 
They read as follows:

    Use of Bobwhite Quail and Other Grassland Bird Species Technical 
Standard. The technical standard is 70% ground cover.
    Erosion of landscapes is a natural process dependent on relief, 
type of geologic material, precipitation, and vegetative cover. 
Appropriate reclamation land use planning takes these factors into 
account and should ensure that in all cases ground cover will be 
adequate to control erosion.

    c. Texas proposes to revise the second sentence of the paragraph 
entitled ``Statistical Comparison'' to read as follows:

    Obtain the lowest acceptable value by multiplying the 
appropriate technical standard (re: precipitation level) by 0.9 
(i.e., General: 78% x 0.9 = 70% or Bobwhite Quail: 70% x 0.9 = 63%).

2. D.2 Fish and Wildlife Habitat--Woody-Plant Stocking
    Texas proposes to add the following new paragraph under the heading 
``Use of Technical Standards.''

    Mottes locations planted to support Bobwhite Quail and other 
grassland bird species habitat shall be mapped at the time of 
planting. The success of woody plant stocking (stem count) will be 
based on meeting or exceeding the technical standard for motte 
density per acre and by counting the number of stems per motte.

B. Appendix B--Summary of Revegetation Success Standards--Fish and 
Wildlife Habitat Only

    Texas proposes to revise revegetation parameters and performance 
standards for the ground cover and woody-plant stocking rate section of 
the table in Appendix B.
    1. The first paragraph of the ground cover portion of the table is 
revised by adding the word ``General.'' The revised paragraph reads as 
follows:

    90% of the Following General Technical Standard: 78%

    2. Texas proposes to add the following new paragraph:

    90% of the Following Bobwhite Quail and Grassland Bird Species 
Technical Standard: 70%

    3. The first paragraph of the Woody-Plant Stocking Rate portion of 
the table is revised by adding an exception to the 90% technical 
standard as follows:

    90% of the Following Technical Standard except for mottes used 
to support Bobwhite Quail and Grassland Bird Species.

[[Page 51691]]

C. Attachment 2--Texas Parks and Wildlife Department (TPWD) 
Recommendations for the Development of Success Standards for Woody-
Plant Stocking Rates

    Texas proposes to make changes to the ``Minimum Woody Vegetation 
Stocking Rates'' table that is included in Attachment 2. The current 
table pertains to all fish and wildlife land use habitat categories. 
The revised table will include a general fish and wildlife land use 
habitat category and a specific fish and wildlife land use habitat 
category for bobwhite quail and other grassland bird species.
1. General Land Use Category and Planting Standards.
    a. Texas added the headings ``General Land Use Category'' and 
``Planting Standards'' to the existing table.
    b. Under the ``General Land Use Category'' heading, Texas added the 
language ``(See Note 1)'' after the subheading of ``Hardwood.'' Texas 
added ``Note 1'' to the bottom of the revised table. It reads as 
follows: ``Note 1: Up to 30% of the planting standard can be pine. 
Longleaf pine is preferred, with native warm season grasses 
interspersed.'' Texas also removed the subheading of ``Pine'' along 
with the ``Statewide'' designation. Under the Planting Standards 
heading, Texas removed the language ``0 stems per acre'' for pine.
2. Fish & Wildlife Habitat--Bobwhite Quail and other Grassland Bird 
Species and Planting Standards
    Texas added a new land use habitat category for bobwhite quail and 
other grassland bird species and the planting standards for the new 
habitat category to the existing table as shown below:

------------------------------------------------------------------------
 Fish and wildlife habitat--bobwhite quail
     and other grassland bird species            Planting standards
------------------------------------------------------------------------
Native Brush:
  Statewide--Mottes.......................  a. density of 2 mottes per
                                             acre.
                                            b. mottes 30-50 feet in
                                             diameter.
                                            c. 125 stems per motte or
                                             250 stems per acre.
  Hardwood or Pine Statewide..............  0 to a maximum 20 stems per
                                             acre.
------------------------------------------------------------------------

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 Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: Docket No. TX-054-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.d.t. on 
September 15, 2005. 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 
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 analysis performed for the counterpart Federal regulation.

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.

[[Page 51692]]

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 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.). 
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 
tribal governments or the private sector 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: August 17, 2005.
Ervin J. Barchenger,
Acting Regional Director, Mid-Continent Region.
[FR Doc. 05-17337 Filed 8-30-05; 8:45 am]
BILLING CODE 4310-05-P