[Federal Register Volume 67, Number 215 (Wednesday, November 6, 2002)]
[Rules and Regulations]
[Pages 67531-67534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28199]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[SPATS No. TX-048-FOR]
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
concerning valid existing rights. Texas intends to revise its program
to be consistent with the corresponding Federal regulations.
EFFECTIVE DATE: November 6, 2002.
FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa
Field Office, Office of Surface Mining, 5100 East Skelly Drive, Suite
470, Tulsa, Oklahoma 74135-6548. Telephone: (918) 581-6430. Internet:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Texas Program
II. Submission of the Proposed 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 the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the 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 on 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 concerning the Texas program at 30 CFR
943.10, 943.15, and 943.16.
II. Submission of the Proposed Amendment
By letter dated July 25, 2001 (Administrative Record No. TX-
653.02), Texas sent us an amendment to its program under SMCRA (30
U.S.C. 1201 et seq.). Texas sent the amendment in response to our
letter dated August 23, 2000 (Administrative Record No. TX-653), that
we sent to Texas under 30 CFR 732.17(c). Texas proposed to amend Title
16 Texas Administrative Code Chapter 12.
We announced receipt of the amendment in the September 20, 2001,
Federal Register (66 FR 48396). 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 proposed amendment. The public
comment period closed on October 22, 2001. We did not receive any
comments and did not hold a public hearing or meeting because no one
requested one.
During our review of the amendment, we identified incorrect
reference citations and concerns relating to the definition of ``valid
existing rights.'' We notified Texas of these concerns by an e-mail
dated September 24, 2001, and a letter dated June 14, 2002
(Administrative Record Nos. TX-653.04 and TX-653.07, respectively). By
letters dated October 22, 2001, June 5, 2002, and June 18, 2002
(Administrative Record Nos. TX-653.05, TX-653.06, and TX-653.08,
respectively), Texas sent us additional explanatory information and
revisions to its program amendment.
Based upon Texas' additional explanatory information and revisions
to its amendment, we reopened the public comment period in the August
13, 2002, Federal Register (67 FR 52664). The public comment period
closed on August 28, 2002. We did not receive any comments.
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. Any revisions that we do not specifically
discuss below concern nonsubstantive wording or editorial changes, or
revised cross-references and paragraph notations to reflect
organizational changes resulting from this amendment.
A. Revisions to Texas' Regulations That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations
The State regulations listed 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 minor.
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Federal
Topic State regulation counterpart
regulation
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Areas where surface coal mining Section 12.71(a), 30 CFR 761.11, 30
operations are prohibited or Section 12.71(b). CFR 761.12.
limited.
Procedures for compatibility Section 12.72(a), 30 CFR 761.14, 30
findings, public road closures Section 12.72(b), CFR 761.15, 30
and relocations, buffer zones, Section 12.72(c). CFR 761.16.
and valid existing rights
determinations.
Commission obligations at time Section 12.73..... 30 CFR 761.17.
of permit application review.
Applicability and restrictions Section 12.77(a), 30 CFR 762.14, 30
on exploration on land Section 12.77(b). CFR 762.15.
designated as unsuitable for
surface coal mining operations.
General requirements: Section 30 CFR
Exploration that will remove 12.111(1)(H). 772.12(b)(14).
more than 250 tons of coal or
that will occur on lands
designated as unsuitable for
surface coal mining operations.
Applications: Approval or Section 30 CFR
disapproval of exploration of 12.112(b)(4). 772.12(d)(2)(iv).
more than 250 tons of coal or
that will occur on lands
designated as unsuitable for
surface coal mining operations.
Applications: Notice and Section 12.113(a). 30 CFR
hearing for exploration of more 772.12(e)(1).
than 250 tons.
Relationship to areas Section 12.118(a) 30 CFR 778.16(a)
designated unsuitable for and (c). and (c).
mining (surface mining).
Protection of public parks and Section 30 CFR
historic places (surface 12.151(a)(2). 780.31(a)(2).
mining).
Relationship to areas Section 12.158(a) 30 CFR 778.16(a)
designated unsuitable for and (c). and (c).
mining (underground mining).
Protection of public parks and Section 30 CFR
historic places (underground 12.191(a)(2). 784.17(a)(2).
mining).
Public notices of filing of Section 30 CFR
permit applications. 12.207(a)(5). 773.13(a)(1)(v).
Criteria for permit approval or Section 30 CFR
disapproval. 12.216(4)(A). 773.15(c)(3)(ii).
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Because the above State regulations have the same meaning as the
corresponding Federal regulations, we find that they are no less
effective than the Federal regulations. Therefore, we are approving
them.
B. Texas Administrative Code (TAC) Section 12.3 Definitions
1. Texas proposed to remove its definition of ``surface coal mining
operations which exist on the date of enactment'' found at TAC section
12.3(169). As a result of the removal of this definition, the State
proposed to renumber the remaining definitions in this section. We are
approving the removal of this definition and the subsequent renumbering
of the remaining definitions because we removed the definition of
``surface coal mining operations which exist on the date of enactment''
from the Federal regulations at 30 CFR 761.5. Please see the Federal
Register dated December 17, 1999 (64 FR 70831).
2. Texas proposed to revise its definition of ``valid existing
rights'' found at TAC section 12.3(187) to be consistent with the
corresponding Federal definition of ``valid existing rights.''
On December 17, 1999 (64 FR 70766), we published our final rule
redefining the circumstances under which a person has valid existing
rights to conduct surface coal mining operations on lands listed in
section 522(e) of SMCRA. This section prohibits or restricts surface
coal mining operations on certain lands. Our final rule included a
revised definition of valid existing rights found at 30 CFR 761.5. In
paragraph (a) of this revised definition, we added a clause clarifying
that the provisions requiring the use of state law to interpret
documents does not apply if federal law provides otherwise. The clause
reads, ``unless Federal law provides otherwise.'' Texas' proposed
definition of ``valid existing rights'' is substantively the same as
the Federal definition, except that the State did not include this
clause in its proposed definition. Though it is unlikely that Texas
will have to make a determination of ``valid existing rights'' that
will require the State to use applicable federal law to interpret
documents relied upon to establish property rights, Texas sent us a
letter dated June 18, 2002 (Administrative Record No. TX-653.08),
clarifying that it will make any such determinations using the
applicable federal law. Because Texas' proposed definition of ``valid
existing rights'' is substantively the same as the Federal definition
of ``valid existing rights,'' we are approving it.
C. TAC Section 12.74 Responsibility (Formerly Section 12.73)
Texas proposed to redesignate existing section 12.73 as new section
12.74. We are approving the redesignation because it does not change
the content of the previously approved regulation in any way.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment, but did not receive
any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) of the Federal regulations 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 Nos. TX-653.03 and TX-653.10). We
did not receive any comments.
Environmental Protection Agency (EPA)
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.
[[Page 67533]]
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from the EPA (Administrative Record Nos. TX-653.03 and TX-
653.10). 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 6, 2001, we requested comments on Texas'
amendment (Administrative Record Nos. TX-653.03 and TX-653.10), but
neither responded to our request.
V. OSM's Decision
Based on the above findings, we approve the amendment as sent to us
by Texas on July 25, 2001, and as revised on October 22, 2001, and June
5, 2002.
We approve the regulations that Texas proposed with the provision
that they be published in identical form to the regulations sent to and
reviewed by OSM and the public.
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. SMCRA requires that the
State's program demonstrates 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--Takings
In this rule, the State is adopting valid existing rights standards
that are similar to the standards in the Federal definition at 30 CFR
761.5. Therefore, this rule has the same takings implications as the
Federal valid existing rights rule. The taking implications assessment
for the Federal valid existing rights rule appears in Part XXIX.E. of
the preamble to that rule. See 64 FR 70766, 70822-27, December 17,
1999.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget 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 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 the Office of Management and Budget 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
[[Page 67534]]
tribal governments or the private sector cost 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: September 20, 2002.
Charles E. Sandberg,
Acting 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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* * * * * * *
July 25, 2001................. November 6, 2002. Sections 12.3(169)
definition of
``surface coal
mining operations
which exist on the
date of enactment
[removed] and
12.3(187) definition
of ``valid existing
rights;'' 12.71-.74;
12.77; 12.111(1)(H);
12.112(b)(4);
12.113(a); 12.118(a)
and (c);
12.151(a)(2);
12.158(a) and (c);
12.191(a)(2);
12.207(a)(5); and
12.216(4)(A).
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[FR Doc. 02-28199 Filed 11-5-02; 8:45 am]
BILLING CODE 4310-05-P