[Federal Register Volume 71, Number 33 (Friday, February 17, 2006)]
[Rules and Regulations]
[Pages 8458-8461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1397]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[Docket No. TX-055-FOR]


Texas Regulatory Program

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

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

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 the Texas Surface 
Coal Mining and Reclamation Act (TSCMRA) and the Texas Administrative 
Code (TAC) regarding the State's annual fees that are required from 
coal mining permit holders. Texas proposed to change the requirement 
for the current annual fee and to add two new annual fees. Texas 
intends to revise its program to reduce the economic cost to the coal 
mining industry as a whole and to require coal mining permit holders 
that have ceased mining to pay annual fees.

EFFECTIVE DATE: February 17, 2006.

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. 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 October 6, 2005 (Administrative Record No. TX-660), 
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.
    We announced receipt of the proposed amendment in the November 29, 
2005, Federal Register (70 FR 71441). 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 December 29, 2005. We received comments from 
one industry group.

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. Any revisions that we do 
not specifically discuss below concern nonsubstantive wording or 
editorial changes.

A. TSCMRA Section 134.055. Annual Fee

    Section 134.055 of Texas' statute currently requires each permit 
holder to pay an annual fee for each acre of land in the permit area on 
which the permit holder actually conducted operations

[[Page 8459]]

for removing coal during the year (mined acreage fee). Presently, this 
fee can not be less than $120.00 per acre. Texas proposed to revise 
section 134.055 by changing the section title from Annual Fee to Annual 
Fees. Texas also proposed to eliminate the $120.00 per acre minimum fee 
for the mined acreage fee and to allow the Railroad Commission of Texas 
(Commission) to determine the amount of this fee. In addition, Texas 
proposed to add two new annual fees; a fee for mining permits in effect 
at the end of a calendar year (mining permit fee) and a fee for each 
acre of land in the bonded permit area (bond acreage fee). Texas 
proposed to allow the Commission to determine the amount of each of 
these two new annual fees. Furthermore, Texas stated in its letter 
dated October 6, 2005 (Administrative Record No. TX-660), that the 
proposed revised and new annual fees when coupled with the permit 
application fees are not expected to exceed 50 percent of the 
anticipated costs to administer the coal mining regulatory program for 
calendar year 2006.
    The Federal statute at section 507(a) of SMCRA provides that each 
application for a surface coal mining and reclamation permit shall be 
accompanied by a fee as determined by the regulatory authority and that 
such fee may be less than, but shall not exceed the actual or 
anticipated cost of reviewing, administering, and enforcing such permit 
issued pursuant to a State program. The regulatory authority may also 
develop procedures to allow the fee to be paid over the term of the 
permit.
    We find that Texas' proposed annual permit fees, including the 
current mined acreage fee and the two new fees (mining permit fee and 
bond acreage fee), are reasonable and consistent with the discretionary 
authority provided by the above Federal statute. Therefore, we are 
approving Texas' above revisions.

B. 16 TAC 12.108. Permit Fees

    Texas proposed to revise its regulations at 16 TAC 12.108, 
regarding permit fees, to implement the above proposed statutory 
amendment.
    Texas proposed to add the title, ``Application Fees,'' and the 
title, ``Annual Fees,'' to paragraph (a) and paragraph (b), 
respectively. In paragraph (b), Texas proposed to require the annual 
fees due and payable no later than March 15th of the year following the 
year for which these fees are applicable. Also, Texas proposed to add 
new paragraph (b)(1). This paragraph reduces the current annual mined 
acreage fee from $390.00 to $160.00 per acre for each acre of land 
within the permit area on which coal or lignite was actually removed 
during the calendar year. In addition, Texas proposed to add new 
paragraph (b)(2) which adds a new bond acreage fee and proposed to set 
this fee at $3.00 per acre for each acre of land within a permit area 
covered by a reclamation bond on December 31st of the year. 
Furthermore, Texas proposed to add new paragraph (b)(3) which adds a 
new mining permit fee and proposed to set this fee at $3,550.00 for 
each permit in effect on December 31st of the year. Finally, Texas 
stated in its letter dated October 6, 2005 (Administrative Record No. 
TX-660), that the proposed revised and new annual fees, when coupled 
with the permit application fees, are not expected to exceed 50 percent 
of the anticipated costs to administer the coal mining regulatory 
program for calendar year 2006.
    The Federal regulation at 30 CFR 777.17 provides that an 
application for a surface coal mining and reclamation permit shall be 
accompanied by a fee as determined by the regulatory authority and that 
such fee may be less than, but shall not exceed the actual or 
anticipated cost of reviewing, administering, and enforcing such permit 
issued pursuant to a State program. The regulatory authority may also 
develop procedures to allow the fee to be paid over the term of the 
permit.
    We find that Texas' proposed annual permit fees, including the 
current mined acreage fee and the two new fees (mining permit fee and 
bond acreage fee), are reasonable and consistent with the discretionary 
authority provided by the Federal regulation. Therefore, we are 
approving the above revisions.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment, and received one 
from TXU Power on behalf of TXU Mining Company LP (Administrative 
Record No. TX-660.03). The commenter stated that TXU strongly supports 
the proposed program amendment.

Federal Agency Comments

    On October 26, 2005, 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-660.01). We did not receive any 
comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    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 October 26, 2005, under 30 CFR 732.17(h)(11)(i), we requested 
comments on the amendment from the EPA (Administrative Record No. TX-
660.01). 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 October 26, 2005, we requested comments on Texas' 
amendment (Administrative Record No. TX-660.01), but neither responded 
to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Texas sent us 
on October 6, 2005.
    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 analysis performed for the counterpart Federal 
regulations.

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

[[Page 8460]]

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 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 regulations did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 943

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 20, 2006.
Charles E. Sandberg,
Regional Director, Mid-Continent Region.

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.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
October 6, 2005...............  February 17, 2006  TSCMRA Section
                                                    134.055; and 16 TAC
                                                    12.108(a) and (b).
------------------------------------------------------------------------


[[Page 8461]]

[FR Doc. 06-1397 Filed 2-16-06; 8:45 am]
BILLING CODE 4310-05-P