[Federal Register Volume 63, Number 109 (Monday, June 8, 1998)]
[Rules and Regulations]
[Pages 31114-31116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15241]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[SPATS No. TX-035-FOR]
Texas Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving a proposed amendment to the Texas regulatory
program (hereinafter referred to as the ``Texas program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
amendment consists of revisions to Texas' regulations pertaining to
definitions, prime farmland, small operator assistance, release of
performance bond, and backfilling and grading. The amendment is
intended to revise the Texas program to be consistent with the
corresponding Federal regulations.
EFFECTIVE DATE: June 8, 1998.
FOR FURTHER INFORMATION CONTACT:
Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface
Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470,
Tulsa, Oklahoma 74135-6548, Telephone: (918) 581-6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Texas Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Texas Program
On February 16, 1980, the Secretary of the Interior conditionally
approved the Texas program. Background information on the Texas
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the February
27, 1980 Federal Register (45 FR 12998). Subsequent actions concerning
the conditions of approval and program amendments can be found at 30
CFR 943.10, 943.15, and 943.16.
II. Submission of the Proposed Amendment
By letter dated December 1, 1997 (Administrative Record No. TX-
644), Texas submitted and amendment to its program pursuant to SMCRA.
Texas submitted the amendment in response to a June 17, 1997, letter
(Administrative Record No. 640) and OSM sent to Texas in accordance
with 30 CFR 732.17(c). Texas amended its regulations at Chapter 12 of
the Texas Administrative Code (TAC) pertaining to definitions, prime
farmland, small operator assistance, release of performance bond, and
backfilling and grading.
OSM announced receipt of the proposed amendment in the December 29,
1997, Federal Register (62 FR 67598) and in the same document opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the amendment. The public comment
period closed on January 28, 1998. Because no one requested a public
hearing or meeting, none was held.
During its review of the amendment, OSM identified concerns
relating to release of performance bond and backfilling and grading.
OSM notified Texas of the concerns by letter dated February 12, 1998
(Administrative Record No. TX-644.06). Texas responded in a letter
dated March 6, 1998 (Administrative Record No. TX-644.07, by submitting
revisions to its amendment. Based upon the revisions to the proposed
program amendment submitted by Texas, OSM reopened the public comment
period in the April 29, 1998, Federal Register (63 FR 23407). The
public comment period closed on May 14, 1998.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment.
Revisons not specifically discussed below concern nonsubstantive
wording changes, or revised cross-references and paragraph nota6tions
to reflect organizational changes resulting from this amendment.
A. Revisions to Texas' Regulations That Are Substantively Identical to
the Corresponding Provisions of the Federal Regulations
The State regulations listed in the table below contain language
that is the same as or similar to the corresponding sections of the
Federal regulations. Differences between the State regulations and the
Federal regulations are nonsubstantive.
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Topic State regulation Federal counterpart regulation
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Definition of Previously Mined 16 TAC 12.3........................... 30 CFR 701.5
Area.
Definition of Qualified 16 TAC 12.3........................... 30 CFR 701.5
Laboratory.
Definition of Thick Overburden... 16 TAC 12.3........................... 30 CFR 816.105(a)
Definition of Thin Overburden.... 16 TAC 12.3........................... 30 CFR 816.104(a)
Prime Farmland................... 16 TAC 12.201(d)(5)................... 30 CFR 785.17(e)(5)
Terms and Conditions of the Bond. 16 TAC 12.309(1)...................... 30 CFR 800.21(f)
Release of Performance Bond-- 16 TAC 12.312 (a)(1), (a)(2), (a)(3).. 30 CFR 800.40 (a)(1), (a)(2), (a)(3)
Application.
Release of Performance Bond-- 16 TAC 12.312 (b)(1), (b)(2).......... 30 CFR 800.40 (b)(1), (b)(2)
Inspection.
Release of Performance Bond-- 16 TAC 12.313 (a), (a)(1), (a)(2), 30 CFR 800.40 (c), (c)(1), (c)(2),
Criteria and Schedule. (a)(3), (b), (d), (f). (c)(3), (d), (f), (g)
Backfilling and Grading: Thin 16 TAC 12.387......................... 30 CFR 816.104(b)
Overburden.
[[Page 31115]]
Backfilling and Grading: Thick 16 TAC 12.388......................... 30 CFR 816.105(b)
Overburden.
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Because the above proposed revisions are identical in meaning to
the corresponding Federal regulations, the Director finds that Texas'
proposed regulations are no less effective than the Federal
regulations.
B. Small Operator Assistance Program (SOAP)
1. 16 TAC 12.237 Eligibility for Assistance
At section 12.237(2), Texas amended the eligibility requirements
for participation in its small operator assistance program by
increasing the amount of the probable total actual and attributed
production allowed for applicants from 100,000 to 300,000 tons. At
section 12.237(2) (B) and (C), Texas increased the baseline percentage
above which ownership will play a role in determining attributed coal
production from 5 to 10 percent.
The Director finds that the proposed revisions are consistent with
the requirements of the Federal regulations at 30 CFR 795.6(a)(2), and
is approving them.
2. 16 TAC 12.243 Applicant Liability
Texas revised section 12.243(a) to require that a coal operator who
has received assistance pursuant to sections 12.236 and 12.240
reimburse the Commission for the cost of the services rendered. Texas
revised section 12.243(a)(4) to specify that reimbursement will be
required if the Commission finds that the operator's actual and
attributed annual production of coal for all locations exceeds 300,000
tons during the 12 months immediately following the date on which the
operator is issued the surface coal mining and reclamation permit.
Texas revised section 12.243(a)(5) to specify that reimbursement will
be required if the permit is sold, transferred, or assigned to another
person and the transferee's total actual and attributed production
exceeds the 300,000-ton production limit during the 12 months
immediately following the date on which the permit was originally
issued.
The Director finds that the revisions to section 12.243 make it
substantively identical to the Federal regulation at 30 CFR 795.12, and
is approving the revisions.
3. 16 TAC 12.236 and 12.240
In the June 17, 1997, letter that was sent to Texas in accordance
with 30 CFR 732.17(c), OSM also notified Texas of changes needed to its
small operator assistance program regulations pertaining to program
services and data requirements. Texas noted in this proposed amendment
that it will propose revisions to its regulations at 16 TAC 12.236
(Program Services) and 12.240 (Data Requirements) in a future amendment
following appropriate statutory changes. Texas also stated that it
currently has no small operator assistance program and has no current
or potential operations that may qualify for program assistance.
Therefore, it is the Director's understanding that Texas will not
implement its small operator assistance program regulations until after
it amends its regulations at 16 TAC 12.236 and 12.240.
IV. Summary and Disposition of Comments
Public Comments
OSM solicited public comments on the proposed amendment, but none
were received.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Texas program (Administrative
Record No. TX-644.03). By letter dated December 24, 1997, the U.S. Army
Corps of Engineers commented that its review found the changes to be
satisfactory (Administrative Record No. TX-644.05).
Environmental Protection Agency (EPA).
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed amendment that relate to air or water quality standards
promulgated 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, OSM did not request the EPA's
concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
amendment from the EPA (Administrative Record No. TX-644.01). The EPA
did not respond to OSM's request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit
comments on proposed amendments which may have an effect on historic
properties from the SHPO and ACHP. OSM solicited comments on the
proposed amendment from the SHPO and ACHP (Administrative Record No.
TX-644.02). Neither the SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Texas on December 1, 1997, and as revised on
March 6, 1998.
The Director approves the regulations proposed by Texas with the
provision that they be fully promulgated in identical form to the
regulations submitted to and reviewed by OSM and the public.
The Federal regulations at 30 CFR Part 943, codifying decisions
concerning the Texas program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed 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 regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under
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sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 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.
National Environmental Policy Act
No environmental impact statement is required for this rule since
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 has determined 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
corresponding 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. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. 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 corresponding Federal regulations.
Unfunded Mandates
OSM has determined and certifies pursuant to the Unfunded Mandates
Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a
cost of $100 million or more in any given year on local, state, or
tribal governments or private entities.
List of Subjects in 30 CFR Part 943
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 22, 1998.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR part 943 is amended
as set forth below:
PART 943--TEXAS
1. The authority citation for Part 943 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
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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Original amendment submission Date of final
date publication Citation/description
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* * * *
* * *
December 1, 1997.............. June 8, 1998..... 16 TAC 12.3;
12.201(d)(5);
12.237(2), (2)(B)
and (C); 12.243(a),
(a)(4) and (5);
12.309(1); 12.312(a)
and (b); 12.313(a),
(b), (d), and (f);
12.387; 12.388.
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[FR Doc. 98-15241 Filed 6-5-98; 8:45 am]
BILLING CODE 4310-05-M
