[Federal Register Volume 72, Number 222 (Monday, November 19, 2007)]
[Rules and Regulations]
[Pages 64942-64946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22555]


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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[Docket No. TX-057-FOR]


Texas Regulatory Program and Abandoned Mine Land Reclamation Plan

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

ACTION: Final rule; approval of amendments.

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

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving amendments to the Texas regulatory program (Texas 
program) and the Texas abandoned mine land reclamation plan (Texas 
plan) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). Texas proposed revisions to and additions to 
regulations concerning post mining land uses; terms and conditions of 
the bond; topsoil redistribution; standards for revegetation success; 
public hearing; review of notice of violation or cessation order; 
determination of amount of penalty; assessment of separate violation 
for each day; request for hearing; and liens. Also, Texas proposed 
revisions to its statute concerning liens and administrative penalty 
for violation of permit conditions. Texas intends to revise its program 
and plan to be consistent with the corresponding Federal regulations 
and/or SMCRA, to clarify ambiguities, and to improve operational 
efficiency.

DATES: Effective Date: November 19, 2007.

FOR FURTHER INFORMATION CONTACT: Alfred L. Clayborne, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program and Texas Plan
II. Submission of the Amendments
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Texas Program and Texas Plan

    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 (Secretary) 
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.
    The Abandoned Mine Land Reclamation Program was established by 
Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns 
over extensive environmental damage caused by past coal mining 
activities. A reclamation fee on each ton of coal supports the 
abandoned mine land reclamation program. The money collected is used to 
finance the reclamation of abandoned coal mines and for other 
authorized activities. Section 405 of the Act allows States and Indian 
Tribes to assume exclusive

[[Page 64943]]

responsibility for reclamation activity within the State or on Indian 
lands if they develop and submit to the Secretary for approval, a 
program (often referred to as a plan) for the reclamation of abandoned 
coal mines. On the basis of these criteria, the Secretary approved the 
Texas plan on June 23, 1980. You can find background information on the 
Texas plan, including the Secretary's findings, the disposition of 
comments, and the approval of the plan in the June 23, 1980, Federal 
Register (45 FR 41937). You can find later actions concerning the Texas 
plan and amendments to the plan at 30 CFR 943.25.

II. Submission of the Amendments

    By letter dated February 14, 2007 (Administrative Record No. TX-
662), Texas sent us amendments to the Texas program and the Texas plan, 
at its own initiative, under SMCRA (30 U.S.C. 1201 et seq.). We 
announced receipt of the proposed amendments in the April 30, 2007, 
Federal Register (72 FR 21185). We did not receive any public comments. 
We did receive comments from two Federal agencies.
    During our review of the amendment to the Texas program, the 
Railroad Commission of Texas notified us that the Texas legislators 
capped the State's administrative penalty at $10,000 instead of the 
$13,000 as proposed in the amendment to the Texas program submitted to 
us on February 14, 2007 (Administrative Record No. TX-662). On May 7, 
2007, Texas sent us this revision to its regulatory program statutes 
regarding administrative penalty for violations of permit conditions 
along with corresponding revisions to its regulations regarding 
determination of amount of penalty (Administrative Record No. TX-
662.03).
    Also, during our review of the Texas program amendment, we 
identified concerns about informal public hearings and assessment of 
separate violations for each day. By email dated June 5, 2007 
(Administrative Record No. TX-662.07) we notified Texas of these 
concerns. Texas sent us revisions to this amendment by e-mail dated 
June 7, 2007 (Administrative Record No. TX-662.08).
    Based on Texas' revisions to its amendment, we reopened the public 
comment period in the June 11, 2007, Federal Register at 72 FR 32049. 
The public comment period ended on June 26, 2007. We did not receive 
any public comments.

III. OSM's Findings

    Following are the findings we made concerning the amendments under 
SMCRA and the Federal regulations at 30 CFR 732.15, 732.17, 884.14, and 
884.15. We are approving the amendments as described below.

A. Revisions to Texas' Statutes, Chapter 134 of the Texas Surface Coal 
Mining and Reclamation Act (TSCMRA)

1. Section 134.150 Lien
    Texas revised its requirements at section 134.150(c) pertaining to 
who may not be subject to liens as a result of the reclamation of 
abandoned mine lands. Currently, persons who owned property before May 
2, 1977, and who did not consent to, or participate in, or exercise 
control over the mining operation that necessitated the reclamation are 
exempt from liens. Texas removed the date requirement at section 
134.150(c)(1) so that persons who did not consent to, or participate 
in, or exercise control over the mining operation (that necessitated 
the reclamation) are exempt from liens regardless of when they acquired 
the property.
    We are approving the change because this date requirement of May 2, 
1977, was also removed from section 408(a) of SMCRA effective December 
20, 2006, and because the change will not make Texas' plan less 
stringent than SMCRA.
2. Section 134.174 Administrative Penalty for Violation of Permit 
Condition of this Chapter
    Texas proposed to revise subsection (b) by increasing its penalty 
cap from $5,000 to $10,000 for each violation at surface coal mining 
operations.
    Section 518(i) of SMCRA requires that the civil penalty provisions 
of each State program contain, at a minimum, penalties which are ``no 
less stringent than'' those set forth in SMCRA. Section 518(a) of SMCRA 
assesses a maximum penalty of $5,000 for each violation. Texas proposed 
a maximum penalty of $10,000 for each violation. We are approving 
Texas' change at section 134.174(b) because it is no less stringent 
than SMCRA.

B. Revisions to Texas' Regulations That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations

    Texas' regulations listed in the table below contain language that 
is the same as or similar to the corresponding sections of the Federal 
regulations or statute.

------------------------------------------------------------------------
                                State regulation     Federal counterpart
            Topic             Texas Administrative      regulation or
                                   Code (TAC)              statute
------------------------------------------------------------------------
Reclamation Plan: Postmining  12.147(a) through     30 CFR 780.23(b)
 Land Uses.                    (a)(3).               through (b)(3).
Letters of Credit...........  12.309(g)(2)........  30 CFR 800.21(b)(2).
Topsoil: Redistribution.....  12.337(b) through     30 CFR 816.22(d)(1)
                               (b)(3).               through
                                                     (d)(1)(iii).
Revegetation: Standards for   12.395(a)(1),         30 CFR
 Success.                      (b)(1), (b)(3),       816.116(a)(1),
                               (b)(3)(A) and (B),    (b)(1), (b)(3),
                               and (c)(3) and (4).   (b)(3)(i) and (ii),
                                                     and (c)(3)(i) and
                                                     (c)(4).
Informal Public Hearing.....  12.681(a), (b)        30 CFR 843.15(a),
                               through (b)(3),       (b) through (b)(3),
                               (c), (e), (f), and    (c), (e), and (h).
                               (h).
Formal Review of Notice of    12.682(a) and (b)...  30 CFR 843.16(a) and
 Violation or Cessation                              (b).
 Order.
Assessment of Separate        12.689(b) through     30 CFR 845.15(b)
 Violations for Each Day.      (b)(3).               through (b)(2).
Request for Hearing.........  12.693..............  30 CFR 845.19(a).
Liens.......................  12.816(c)...........  Section 408(a) of
                                                     SMCRA, as amended
                                                     in December 2006.
------------------------------------------------------------------------

    Because the above State regulations contain language that is the 
same as or similar to or have the same meaning as the corresponding 
Federal regulations or statute, we find that they are no less stringent 
than SMCRA and/or no less effective than the Federal regulations.

B. TAC 12.337 Topsoil: Redistribution

    In section 12.337(a), Texas added topsoil substitutes to the list 
of materials to be redistributed after final grading during surface 
mining reclamation. The

[[Page 64944]]

counterpart Federal regulation at 30 CFR 816.22(d)(2) includes topsoil 
substitutes as one of the materials being redistributed after the land 
is regraded during surface mining reclamation. We are approving this 
addition because it is no less affective than the above Federal 
regulation.

C. TAC 12.681 Informal Public Hearing

    Texas added the word, informal, to the section heading. Texas also 
revised paragraph (g) by changing ``public hearing'' to ``informal 
public hearing'' and by changing ``review'' to ``formal review.'' The 
revised paragraph (g) reads as follows:

    (g) The granting or wavier of the above informal public hearing 
shall not affect the right of any person to formal review under 
Sec. Sec.  134.175 and 134.176 of the Act and Sec. Sec.  2001.141-
2001.147 of the APA (relating to Contested Cases: Final Decisions 
and Orders; Motions for Rehearing). At such review proceedings, no 
evidence as to statements made or evidence produced at the informal 
public hearing pursuant to this section shall be introduced as 
evidence to impeach a witness.

    The counterpart Federal regulation at 30 CFR 843.15(g) refers to 
``hearings'' and ``reviews'' under enforcement procedures as ``informal 
hearings'' and ``formal reviews.'' We are approving the above revisions 
because they simply clarify that under Texas' enforcement procedures, 
public hearings are ``informal public hearings'' and reviews are 
``formal reviews'' and because the revisions are no less effective than 
the Federal regulations at 30 CFR 843.15(g).

D. TAC 12.688 Determination of Amount of Penalty

    Texas' current regulation regarding administrative penalties was 
promulgated in 1979. Texas proposed to increase these penalties to 
reflect the decreased value in the dollar since 1979. The current 
penalties begin with $20 increments for each penalty assessment point 
and increase to a maximum penalty of $5,000. The revised penalties 
begin with $550 and increase to $10,000.
    Section 518(i) of SMCRA requires that the civil penalty provisions 
of each State program contain penalties which are ``no less stringent 
than'' those set forth in SMCRA. Our regulations at 30 CFR 840.13(a) 
specify that each State program shall contain penalties which are no 
less stringent than those set forth in section 518 of the Act and shall 
be consistent with 30 CFR part 845. However, in a 1980 decision on 
OSM's regulations governing civil monetary penalties (CMPs), the U.S. 
District Court for the District of Columbia held that because section 
518 of SMCRA fails to enumerate a point system for assessing civil 
penalties, the imposition of this requirement upon the States is 
inconsistent with SMCRA. In response to the Secretary's request for 
clarification, the Court further stated that it could not uphold 
requiring the States to impose penalties as stringent as those 
appearing in 30 CFR 845.15. Instead, section 518(i) of the Act requires 
only the incorporation of penalties and procedures explained in section 
518. The system proposed by the State must incorporate the four 
criteria of section 518(a) of SMCRA: (1) History of previous 
violations, (2) seriousness of the violation, (3) negligence of the 
permittee, and (4) good faith of the permittee in attempting to achieve 
compliance. As a result of the litigation, 30 CFR 840.13(a) was 
suspended in part on August 4, 1980 (45 FR 51548) by suspending the 
requirement that penalties shall be consistent with 30 CFR part 845. 
Consequently, we cannot require that the CMP provisions contained in a 
State's regulatory program mirror the point system and resulting dollar 
amounts specified in our regulations.
    We are approving Texas' revised penalties because the penalties are 
no less stringent than those specified in SMCRA and the procedural 
requirements are the same or similar to the procedures specified in 
SMCRA and the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the Texas program and Texas plan 
amendments, but did not receive any.

Federal Agency Comments

    On March 16, 2007 (Administrative Record No. TX-662.01) and May 31, 
2007 (Administrative Record No. TX-662.06), under 30 CFR 
732.17(h)(11)(i), 884.14(a)(2), and 884.15(a), and section 503(b) of 
SMCRA, we requested comments on the amendments from various Federal 
agencies with an actual or potential interest in the Texas program and 
Texas plan. On March 22, 2007, the Natural Resources Conservation 
Service stated that it had no comments pertaining to the proposed 
changes (Administrative Record No. TX-662.02). The U.S. Army Corps of 
Engineers responded on April 20, 2007 (Administrative Record No. TX-
662.04), that both its Southwestern Division representatives and its 
Regulatory Branch in its Headquarters office had no additional comments 
at this time to the proposed changes to the Texas abandoned mine land 
reclamation plan.

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 Texas 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 March 16, 2007 (Administrative Record No. TX-662.01) and July 
10, 2007 (Administrative Record No. TX-662.06), under 30 CFR 
732.17(h)(11)(i), 884.14(a)(2), and 884.15(a), we requested comments on 
the Texas program and Texas plan amendments from the EPA. 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 State regulatory program amendments that may have 
an effect on historic properties. On March 16, 2007 (Administrative 
Record No. TX-662.01) and May 31, 2007 (Administrative Record No. TX-
662.06), we requested comments on the Texas program amendment, but 
neither responded to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendments to the Texas 
program and the Texas plan that Texas sent us on February 14, 2007, and 
as revised on May 7, 2007, and June 7, 2007.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 943, which codify decisions concerning the Texas program 
and Texas plan. 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.

[[Page 64945]]

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 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.

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: October 19, 2007.
Ervin J. Barchenger,
Acting 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.

* * * * *

[[Page 64946]]



------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
February 14, 2007.............  November 19, 2007  TSCMRA 134.174(b);
                                                    TAC 12.147(a)
                                                    through (a)(3);
                                                    12.309(g)(2);
                                                    12.337(a) and (b)
                                                    through (b)(3);
                                                    12.395(a)(1),
                                                    (b)(1), (b)(3),
                                                    (b)(3)(A) and (B),
                                                    and (c)(3) and (4);
                                                    12.681(a), (b)
                                                    through (b)(3), (c),
                                                    (e), (f), (g), and
                                                    (h); 12.682(a) and
                                                    (b); 12.688;
                                                    12.689(b) through
                                                    (b)(3); and 12.693.
------------------------------------------------------------------------


0
3. Section 943.25 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  943.25  Approval of Texas abandoned mine land reclamation plan 
amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
February 14, 2007.............  November 19, 2007  TSCMRA 134.150(c) and
                                                    TAC 12.816(c),
------------------------------------------------------------------------

[FR Doc. E7-22555 Filed 11-16-07; 8:45 am]
BILLING CODE 4310-05-P