E6-19084. Texas Abandoned Mine Land Reclamation Plan

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Proposed rule; public comment period and opportunity for public hearing.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of a proposed amendment to the Texas abandoned mine land reclamation plan (Texas plan) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The Railroad Commission of Texas, Surface Mining and Reclamation Division (RCT or commission) proposes to assume responsibility of the abandoned mine land reclamation (AMLR) emergency program in Texas. The RCT also proposes to revise its AMLR plan to reflect current practices and to update information regarding procedures for rights of entry, staffing, and emergency purchases. Texas intends to revise the Texas plan to be consistent with the corresponding Federal regulations and to improve operational efficiency.

This document gives the times and locations that the Texas plan and the amendment to that plan are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that will be followed for the public hearing, if one is requested.

DATES:

We will accept written comments on this amendment until 4 p.m., c.t., December 13, 2006. If requested, we will hold a public hearing on the amendment on December 8, 2006. We will accept requests to speak at a hearing until 4 p.m., c.t. on November 28, 2006.

ADDRESSES:

You may submit comments, identified by Docket No. TX-056-FOR, by any of the following methods:

• E-mail: [e-mail]. Include “Docket No. TX-056-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, 1645 South 101st East Avenue, Suite 145, Tulsa, Oklahoma 74128.
• Fax: [phone].
• 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, 1645 South 101st East Avenue, Suite 145, Tulsa, Oklahoma 74128, telephone: [phone], e-mail: [e-mail].

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: [phone].

FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Director, Tulsa Field Office. Telephone: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Plan

II. Description of the Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations

I. Background on the Texas Plan

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. The program is funded by a reclamation fee collected on each ton of coal that is produced. 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 responsibility for reclamation activity within the State or on indian lands if they develop and submit to the Secretary of the Interior (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. Description of the Proposed Amendment

By letter dated October 11, 2006 (Administrative Record No. TAML-661), Texas sent us a proposed amendment to its plan under SMCRA (30 U.S.C. 1201 et seq.). Texas sent the amendment at its own initiative. Texas proposes to assume the AMLR emergency program. Below is a summary of the changes proposed by Texas. The full text of the amendment is available for your inspection at the locations listed above under ADDRESSES.

Texas' Proposed AMLR Plan Revisions

Section 410 of SMCRA authorizes the Secretary to use funds under the AMLR program to abate or control emergency situations in which adverse effects of past coal mining pose an immediate danger to the public health, safety, or general welfare. On September 29, 1982 (47 FR 42729), we invited states to amend their AMLR plans for the purpose of undertaking emergency reclamation programs on our behalf. States would have to demonstrate that they have the statutory authority to undertake emergencies, the technical capability to design and supervise the emergency work, and the administrative mechanisms to quickly respond to emergencies either directly or through contractors.

The RCT submitted documentation to demonstrate the statutory authority, the technical capability, and the administrative mechanisms to quickly respond to emergencies either directly or through contractors to meet our requirements.

Texas proposes changes to its AMLR plan narrative at 884.13(c)(6), rights of entry; 884.13(d)(2), staffing; and 884.13(d)(3), purchasing and procurement. Texas also proposes to add a new section at 884.13(d)(3) for emergency purchases.

1. In the first paragraph of 884.13(c)(6), Texas proposes to update the references to its old regulations at Texas Coal Mining Regulations (TCMR) sections 806, 807, and 807(b) to its recodified regulations at 16 Texas Administrative Code (TAC) sections 12.813, 12.814, and 12.814(c).

In the second paragraph of 884.13(c)(6), Texas proposes to remove the phrase, “[i]f requested by OSM to perform as its agent or contractor.” The revised paragraph reads as follows:

The Commission will enter upon any land where an emergency exists and on any other land to have access to the land where the emergency exists to restore, reclaim, abate, control or prevent the adverse effects of coal mining practices and to do all things necessary or expedient to protect the public health, safety, or general welfare.

2. Texas proposes to change its AMLR plan narrative at 884.13(d)(2) regarding “staffing” to demonstrate Texas” technical capability to design and supervise the emergency work. Texas also proposes to include an organizational chart. The proposed narrative for this section reads as follows:

The Surface Mining and Reclamation Division's Abandoned Mine Land Reclamation Program staff has demonstrated experience in developing and managing AML projects. Areas of expertise include realty (rights of entry, appraisal and liens), environmental assessment, engineering design, construction and contract management and revegetation and erosion control.

The Division's Administration and Records Section also provides administrative support. The Commission's Finance and Accounting Division provides purchasing and contracting support and legal support is provided by the Commission's Office of General Counsel.

3. Texas proposes to update its purchasing and procurement procedures at 884.13(d)(3) and to include a new section, emergency purchases.

a. Texas proposes a new introductory paragraph for its general purchasing and procurement procedures as follows:

The Railroad Commission adheres to purchasing and procurement procedures and regulations established by the Texas Building and Procurement Commission (TBPC). Purchasing and procurement authority has been delegated to the Railroad Commission by TBPC. The appropriate bidding processes are established by TBPC for various purchase amounts (Texas Administrative Code, Title 1, Part 5, Chapter 113, Subchapter A, Section 113.11(e)(4)(C)). The Railroad Commission has correspondingly established purchase authority levels associated with those purchase amount thresholds.

b. Texas also proposes to add a new section regarding emergency purchases.

(1) The new introductory paragraph reads as follows:

The Texas Building and Procurement Commission authorizes state agencies to make emergency purchases and has established procedures for doing so (Texas Government Code, Title 10, Subtitle D, Section 2155.137, and Title 1, Texas Administrative Code, Title 1, Part 5, Chapter 113, Subchapter A, Section 113.11(e)(4)(C)). Section 2.18 of the State of Texas Procurement Manual reads as follows:

(2) The paragraph on “agency responsibility” states that Texas Building and Procurement Commission (TBPC) has delegated to all State agencies the authority to make emergency purchases with the proviso that emergency procurements are subject to TBPC's rules and procedures.

(3) The paragraph on “solicitation procedures” allows State agencies to make emergency purchases of at least $25,000 without posting them in the Electronic State Business Daily.

(4) The paragraph on “justification requirements” requires State agencies to send a letter of justification to TBPC documenting the emergency.

(5) The paragraph on “audit requirements” states that emergency purchases of goods and services over $25,000 are subject to pre-payment audits by TBPC.

III. Public Comment Procedures

Under the provisions of 30 CFR 884.15(a), we are requesting comments on whether the amendment satisfies the applicable State reclamation plan approval criteria of 30 CFR 884.14. If we approve the amendment, it will become part of the Texas plan and Texas will be eligible to receive funding to conduct the AMLR Emergency Program in Texas.

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: TX-056-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 [phone].

Availability of Comments

We will make comments, including names and addresses of respondents, available for public review during normal business hours. 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.t. on November 28, 2006. 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, to the extent required by law, 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 and tribal abandoned mine land reclamation plans and plan amendments because each program is drafted and promulgated by a specific State or tribe, not by OSM. Decisions on proposed abandoned mine land reclamation plans and plan amendments submitted by a State or tribe are based solely on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR part 884 of the Federal regulations.

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 abandoned mine land reclamation programs. 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 405(d) of SMCRA requires State abandoned mine land reclamation programs to be in compliance with the procedures, guidelines, and requirements established under 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 plan does not provide for reclamation and restoration of land and water resources adversely affected by past coal mining on indian lands. Therefore, the Texas plan 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 agency decisions on proposed State and tribal abandoned mine land reclamation plans and plan amendments are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior (516 DM 13.5B(29)).

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 24, 2006.

Ervin J. Barchenger,

Acting Regional Director, Mid-Continent Region.