2013-03775. 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 its regulations regarding: definitions; responsibilities; identification of interests and compliance information (surface and underground mining); identification of interests; mining in previously mined areas; review of permit applications; criteria for permit approval or denial; commission review of outstanding permits; challenge of ownership or control and applicant/violator system procedures; revegetation standards of success (surface and underground mining); responsibility: general; alternative enforcement; cessation orders; conditions of permit environment; application approval and notice; permit revisions; permit renewals: completed application; transfer, assignment or sale of permit rights: obtaining approval; and requirements for new permits for persons succeeding to rights granted under a permit. Texas intends to revise its program to be no less effective than corresponding Federal regulations, to clarify ambiguities, and to improve operational efficiency.

DATES:

Effective Date: February 19, 2013.

FOR FURTHER INFORMATION CONTACT:

Alfred L. Clayborne, Director, Tulsa Field Office. Telephone: [phone]. Email: [e-mail].

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 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 of the Texas program in the February 27, 1980, Federal Register (45 FR 12998). You can also find later actions concerning the Texas program and program amendments at 30 CFR 943.10, 943.15, and 943.16.

II. Submission of the Amendment

By email dated August 9, 2012 (Administrative Record No. TX-702), Texas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). Texas submitted the proposed amendment in response to a September 30, 2009, letter (Administrative Record No. TX-665) from OSM, in accordance with 30 CFR 732.17(c), concerning multiple changes to its ownership and control requirements. Texas also made additional changes to its regulations on its own initiative. The specific sections in the Texas program are discussed in Part III OSM's Findings. Texas intends to revise its program to be no less effective than the Federal regulations.

We announced receipt of the proposed amendment in the November 6, 2012, Federal Register (77 FR 66574). 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 6, 2012. We did not receive any public comments.

III. OSM's Findings

We are approving the amendment as described below. The following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not specifically discuss below concerning nonsubstantive wording or editorial changes can be found in the full text of the program amendment available at www.regulations.gov.

Texas proposed to revise portions of its regulations by making minor reference changes. The Texas regulations that contain the minor reference changes are listed in the table below. These minor reference changes are no less effective than counterpart Federal regulations. Therefore, we approve them.

Minor Reference Changes Table

16 Texas Administrative Code	Title
§ 12.221	Conditions of Permits: Environment.
§ 12.226	Permit Revisions.
§ 12.228	Permit Renewals: Completed Applications.
§ 12.232	Transfer, Assignment or Sale of Permit Rights: Obtaining Approval.
§ 12.233	Requirements for New Permits for Persons Succeeding to Rights Granted Under a Permit.
§ 12.239	Application Approval and Notice.

A. 16 Texas Administrative Code § 12.3 Definitions.

Texas proposed to add new definitions for Applicant/Violator System; Control or controller; Lands eligible for remining; Own, owner, or ownership; Remining; and Violation. Texas also revised definitions for Knowing or knowingly; Violation notice; and Willful or willfully. Texas' new definitions and revised definitions are substantively the same as counterpart Federal regulations at 30 CFR 701.5. Therefore, we approve Texas' definitions. Texas deleted its previous definition, Owned or controlled and owns and controls, which does not have a Federal counterpart. The deletion of this previously approved definition does not make Texas' program less effective than the Federal regulation. Therefore, we approve Texas' deletion.

B. 16 Texas Administrative Code § 12.100 Responsibilities.

Texas proposed to delete the word “renewal” in subsection (c). This subsection places the burden on the applicant to insure that the application or revision complies with all the Commission requirements. We find that Texas' deletion of the word “renewal” makes Texas' regulation substantively the same as counterpart Federal regulation at 30 CFR 773.7(b). Therefore, we approve Texas' deletion.

C. 16 Texas Administrative Code § 12.116 Identification of Interests and Compliance Information (Surface Mining); § 12.155 Identification of Interests; and § 12.156 Identification of Interest and Compliance Information (Underground Mining).

Texas proposed to delete old language in § 12.116 regarding identification of interests and compliance information for surface mining. Texas proposed to add new language regarding certifying and updating existing permit information, permit applicant and operator information, permit history information, property interest information, violation information, and commission actions. We find that Texas' new language is substantively the same as counterpart Federal regulations at 30 CFR 778.9 through 778.14. Therefore, we approve Texas' revision.

Texas proposed to delete § 12.155 regarding the identification of interest in certifying or updating existing permit information, permit applicant and operator information, permit history information, property interest information, and violation information. Texas' deletion of this section will minimize redundant language found in § 12.116 regarding identification of interests and compliance information. We find that deleting this section does not make Texas' regulation less effective than the Federal regulation. Therefore, we approve Texas' deletion.

Texas proposed to delete old language in § 12.156 regarding the identification of interests and compliance information for underground mining. Texas proposed new language regarding certifying and updating existing permit information, permit applicant and operator information, permit history information, property interest information, violation information, and commission actions. We find that Texas' new language is substantively the same as counterpart Federal regulations at 30 CFR 778.9 through 778.14. Therefore, we approve Texas' revision.

D. 16 Texas Administrative Code § 12.206 Mining in Previously Mined Areas.

Texas proposed to add new § 12.206 regarding application requirements for operations on lands eligible for remining, in which the applicant must identify potential environmental and safety issues related to prior mining activity, and must describe the mitigating measures that will be taken to ensure that the applicable reclamation requirements of the regulatory program can be met. We find that this new section is substantively the same as the counterpart Federal regulation at 30 CFR 785.25. Therefore, we approve Texas' new section.

E. 16 Texas Administrative Code § 12.215 Review of Permit Applications.

Texas proposed to add new language in § 12.215 that requires the entry and updating of data into the Applicant Violator System. Additionally, Texas is adding new language regarding the review of permit history, review of compliance history, and making a permit eligibility determination based on this information. We find that Texas' new language is substantially the same as counterpart Federal regulations at 30 CFR 773.8 through 773.14. Therefore, we approve Texas' new language.

F. 16 Texas Administrative Code § 12.216 Criteria for Permit Approval or Denial.

Texas proposed to add new language in § 12.216(16) regarding permit findings related to remining sites, that require the application to contain lands eligible for remining, an identification of potential environmental and safety problems, and mitigation plans that address any potential environmental or safety problems. We find that Texas' new language is substantially the same as counterpart Federal regulation at 30 CFR 773.15(m). Therefore, we approve Texas' new language.

G. 16 Texas Administrative Code § 12.225 Commission Review of Outstanding Permits.

Texas proposed to revise parts of § 12.225(d), (e), (g)(1), (g)(1)(A), (B), (C), (D), (E), (g)(2), and (h) regarding written findings, preliminary findings for improvidently issued permits, permit suspension and rescission timeframes, and appeal rights. We find that Texas' new language is substantially the same as counterpart Federal regulations at 30 CFR 773.21(c), 773.22(b) and (c), 773.23(a), (b), (c), and (d). Therefore, we approve Texas' revisions.

H. 16 Texas Administrative Code § 12.234 Challenge of Ownership or Control, Information on Ownership and Control, and Violations, and Applicant/Violator System Procedures.

Texas proposed to add new § 12.234 regarding ownership and control challenges specifically the applicability, procedures, burden of proof, written agency decisions, and post-permit issuance information requirements. We find that Texas' new language is substantially the same as counterpart Federal regulations at 30 CFR 773.25, 773.26, 773.26(a), 773.27, 773.28, 774.11, and 774.12. Therefore, we approve Texas' new section.

I. 16 Texas Administrative Code § 12.395 Revegetation: Standards for Success (Surface Mining) and § 12.560 Revegetation: Standards for Success (Underground Mining).

Texas revised section 12.395(c)(2)(A) and (B), and (3)(A) and (B) of its surface mining regulations; and section 12.560(c)(2)(A) and (B), and (3)(A) and (B) of its underground mining regulations regarding ground cover requirements and woody plant standards for areas with the post-mining land uses of recreation, wildlife habitat, or undeveloped land. The proposed changes to Texas' regulations are substantially the same as counterpart Federal regulations at 30 CFR 816.116(c)(2) and (3), and 30 CFR 817.116(c)(2) and (3). We find that Texas' proposed revisions are no less effective than the Federal requirements, that vegetative groundcover shall not be less than that required to achieve the approved postmining land use. Therefore, we are approving the change.

J. 16 Texas Administrative Code § 12.235 Responsibility: General.

Texas proposed renumbering its previously approved § 12.234 to § 12.235 regarding the general responsibilities of the Texas Commission, which shall review requests for assistance and determine qualified operators, develop and maintain a list of qualified laboratories, conduct periodic on-site program evaluations, and participate in data coordination with other agencies. This change in numbering is done for consistency with other portions of its regulations. We find that this revision does not change any authorities of the Texas Commission already approved by OSM. Therefore, we approve Texas' revision.

K. 16 Texas Administrative Code § 12.676 Alternative Enforcement.

Texas proposed to add new § 12.676 regarding alternative enforcement, specifically for general provisions, criminal penalties, and civil actions for relief. We find that Texas' new section is substantially the same as counterpart Federal regulations at 30 CFR 847.2, 847.11, and 847.16. Therefore, we approve Texas' revision.

L. 16 Texas Administrative Code § 12.677 Cessation Orders.

Texas proposed to add new paragraph § 12.677(g) regarding the requirement for written notification to the permittee, the operator, and anyone listed or identified as an owner or controller of an operation, within 60 days of issuing a cessation order. We find that Texas' new section is substantively the same as counterpart Federal regulations at 30 CFR 843.11. Therefore, we approve Texas' revision.

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 August 16, 2012, 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-702.1).

We did not receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comment

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 pertains to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on August 16, 2012, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. TX-702.1). 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 August 16, 2012, we requested comments on Texas' amendment (Administrative Record No. TX-702.1), but neither the SHPO nor ACHP responded to our request.

V. OSM's Decision

Based on the above findings, we approve the amendment Texas sent us on August 9, 2012 (Administrative Record No. TX-702).

To implement this decision, we are amending the Federal regulations at 30 CFR Part 943 that 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 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: January 24, 2013.

Leonard V. Meier,

Acting Director, Mid-Continent Region.

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:

§ 943.15

Approval of Texas regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
August 9, 2012	February 19, 2013	16 TAC Administrative Code Sections: 12.3; 12.100(c); 12.116; 12.155; 12.156; 12.206; 12.215; 12.216; 12.221; 12.225; 12.226; 12.228;12.232; 12.233; 12.234; 12.235; 12.239; 12.395; 12.560; 12.676; and 12.677.