[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Rules and Regulations]
[Pages 81122-81125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32406]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SATS No. TX-059-FOR; Docket No. OSM-2010-0001]


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). Texas proposed revisions to its regulations 
regarding annual permit fees. Texas revised its

[[Page 81123]]

program at its own initiative to improve operational efficiency. The 
fee changes encourage mining companies to more quickly reclaim lands 
and request bond release, thereby fulfilling SMCRA's purpose of 
assuring the reclamation of mined land as quickly as possible.

DATES: Effective Date: December 27, 2010.

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
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 January 5, 2010 (Administrative Record No. TX-666), 
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 April 26, 
2010, Federal Register (75 FR 21534). 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 26, 2010.

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.

16 Texas Administrative Code (TAC) Section 12.108 Permit Fees

    Texas proposed to revise its regulations at 16 TAC sections 
12.108(b)(1) through (b)(3) regarding annual permit fees by:
    (1) Decreasing, from $150.00 per acre to $130.00 per acre, the 
amount of the fee in paragraph (b)(1) for each acre of land within the 
permit area on which coal or lignite was actually removed during the 
calendar year,
    (2) Increasing, from $3.75 to $5.50, the amount of the fee in 
paragraph (b)(2) for each acre of land within a permit area covered by 
a reclamation bond on December 31st of the year, and
    (3) Increasing, from $4,200.00 to $4,250.00, the amount of the fee 
in paragraph (b)(3) for each permit in effect on December 31st of the 
year.
    The Federal regulations at 30 CFR 777.17, concerning permit fees, 
provide that applications for surface coal mining permits must be 
accompanied by a fee determined by the regulatory authority. The 
Federal regulations also provide that the fees may be less than, but 
not more than, the actual or anticipated cost of reviewing, 
administering, and enforcing the permit.
    Texas' amendment describes how Texas funds its coal mining 
regulatory program. Texas operates on a biennial budget which 
appropriates general revenue funds for permitting and inspecting coal 
mining facilities within the state. This appropriation is contingent on 
the Railroad Commission of Texas (Commission) assessing fees sufficient 
to generate revenue to recover the general revenue appropriation. When 
calculating anticipated costs to the Commission, for regulating coal 
mining activity, Texas anticipates OSM providing grant funding up to 
fifty percent of the regulatory program costs based on section 705(a) 
of SMCRA. However, OSM does not agree that this is a reasonable 
expectation in light of the Administration's proposed fiscal year 2011 
budget announced on February 2, 2010. The proposed fiscal year 2011 
budget reduces overall funding to States, which may result in them 
receiving less than fifty percent of their anticipated regulatory 
program costs, consistent with Section 705 of SMCRA.
    Texas adjusts its fees biennially to recover the amounts expended 
from State appropriations in accordance with a formula and schedule 
agreed to in 2005 by the coal mining industry and the Commission. This 
amendment represents the third adjustment to surface mining fees based 
upon that agreement. Adjustments are expected to continue for a ten 
year period that began in 2005. This amendment identifies historical 
and anticipated costs of conducting coal regulatory functions, 
describes how these costs are allocated to each of the fee types 
assessed by the Commission, and identifies the per unit rate for each 
fee that will be assessed during State fiscal years 2010 and 2011. OSM 
is concerned that the rate for each fee will not generate funds 
sufficient to cover the cost of the regulatory program.
    We find that Texas' changes are consistent with the discretionary 
authority provided by the Federal Regulations at 30 CFR 777.17. OSM 
approves Texas' proposed permit fees, including the annual permit fees, 
recognizing that Texas has a process to adjust its fees to cover the 
cost of its regulatory program that exceeds fifty percent of the total 
program costs not covered by the Federal grant.

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 January 22, 2010, 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-664.02). 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. However, on January 22, 
2010, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA 
on

[[Page 81124]]

the amendment (Administrative Record No. TX-664.02). 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 January 22, 2010, we requested comments on Texas' 
amendment (Administrative Record No. TX-664.02), but neither responded 
to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Texas sent us 
on January 5, 2010.
    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--Taking

    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. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve Federal regulations involving 
Indian lands.

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

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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: December 2, 2010.
Ervin J. Barchenger,
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

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

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


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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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                                           Date of final
 Original amendment submission date         publication                      Citation/description
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                                                  * * * * * * *
January 5, 2010.....................  December 27, 2010.....  16 TAC 12.108(b)(1) through (b)(3).
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[FR Doc. 2010-32406 Filed 12-23-10; 8:45 am]
BILLING CODE 4310-05-P