[Federal Register Volume 71, Number 33 (Friday, February 17, 2006)]
[Rules and Regulations]
[Pages 8458-8461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1397]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[Docket No. TX-055-FOR]
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 the Texas Surface
Coal Mining and Reclamation Act (TSCMRA) and the Texas Administrative
Code (TAC) regarding the State's annual fees that are required from
coal mining permit holders. Texas proposed to change the requirement
for the current annual fee and to add two new annual fees. Texas
intends to revise its program to reduce the economic cost to the coal
mining industry as a whole and to require coal mining permit holders
that have ceased mining to pay annual fees.
EFFECTIVE DATE: February 17, 2006.
FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, 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 October 6, 2005 (Administrative Record No. TX-660),
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 November 29,
2005, Federal Register (70 FR 71441). 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 29, 2005. We received comments from
one industry group.
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.
A. TSCMRA Section 134.055. Annual Fee
Section 134.055 of Texas' statute currently requires each permit
holder to pay an annual fee for each acre of land in the permit area on
which the permit holder actually conducted operations
[[Page 8459]]
for removing coal during the year (mined acreage fee). Presently, this
fee can not be less than $120.00 per acre. Texas proposed to revise
section 134.055 by changing the section title from Annual Fee to Annual
Fees. Texas also proposed to eliminate the $120.00 per acre minimum fee
for the mined acreage fee and to allow the Railroad Commission of Texas
(Commission) to determine the amount of this fee. In addition, Texas
proposed to add two new annual fees; a fee for mining permits in effect
at the end of a calendar year (mining permit fee) and a fee for each
acre of land in the bonded permit area (bond acreage fee). Texas
proposed to allow the Commission to determine the amount of each of
these two new annual fees. Furthermore, Texas stated in its letter
dated October 6, 2005 (Administrative Record No. TX-660), that the
proposed revised and new annual fees when coupled with the permit
application fees are not expected to exceed 50 percent of the
anticipated costs to administer the coal mining regulatory program for
calendar year 2006.
The Federal statute at section 507(a) of SMCRA provides that each
application for a surface coal mining and reclamation permit shall be
accompanied by a fee as determined by the regulatory authority and that
such fee may be less than, but shall not exceed the actual or
anticipated cost of reviewing, administering, and enforcing such permit
issued pursuant to a State program. The regulatory authority may also
develop procedures to allow the fee to be paid over the term of the
permit.
We find that Texas' proposed annual permit fees, including the
current mined acreage fee and the two new fees (mining permit fee and
bond acreage fee), are reasonable and consistent with the discretionary
authority provided by the above Federal statute. Therefore, we are
approving Texas' above revisions.
B. 16 TAC 12.108. Permit Fees
Texas proposed to revise its regulations at 16 TAC 12.108,
regarding permit fees, to implement the above proposed statutory
amendment.
Texas proposed to add the title, ``Application Fees,'' and the
title, ``Annual Fees,'' to paragraph (a) and paragraph (b),
respectively. In paragraph (b), Texas proposed to require the annual
fees due and payable no later than March 15th of the year following the
year for which these fees are applicable. Also, Texas proposed to add
new paragraph (b)(1). This paragraph reduces the current annual mined
acreage fee from $390.00 to $160.00 per acre for each acre of land
within the permit area on which coal or lignite was actually removed
during the calendar year. In addition, Texas proposed to add new
paragraph (b)(2) which adds a new bond acreage fee and proposed to set
this fee at $3.00 per acre for each acre of land within a permit area
covered by a reclamation bond on December 31st of the year.
Furthermore, Texas proposed to add new paragraph (b)(3) which adds a
new mining permit fee and proposed to set this fee at $3,550.00 for
each permit in effect on December 31st of the year. Finally, Texas
stated in its letter dated October 6, 2005 (Administrative Record No.
TX-660), that the proposed revised and new annual fees, when coupled
with the permit application fees, are not expected to exceed 50 percent
of the anticipated costs to administer the coal mining regulatory
program for calendar year 2006.
The Federal regulation at 30 CFR 777.17 provides that an
application for a surface coal mining and reclamation permit shall be
accompanied by a fee as determined by the regulatory authority and that
such fee may be less than, but shall not exceed the actual or
anticipated cost of reviewing, administering, and enforcing such permit
issued pursuant to a State program. The regulatory authority may also
develop procedures to allow the fee to be paid over the term of the
permit.
We find that Texas' proposed annual permit fees, including the
current mined acreage fee and the two new fees (mining permit fee and
bond acreage fee), are reasonable and consistent with the discretionary
authority provided by the Federal regulation. Therefore, we are
approving the above revisions.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment, and received one
from TXU Power on behalf of TXU Mining Company LP (Administrative
Record No. TX-660.03). The commenter stated that TXU strongly supports
the proposed program amendment.
Federal Agency Comments
On October 26, 2005, 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-660.01). We did not receive any
comments.
Environmental Protection Agency (EPA) Concurrence and Comments
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.
On October 26, 2005, under 30 CFR 732.17(h)(11)(i), we requested
comments on the amendment from the EPA (Administrative Record No. TX-
660.01). 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 October 26, 2005, we requested comments on Texas'
amendment (Administrative Record No. TX-660.01), but neither responded
to our request.
V. OSM's Decision
Based on the above findings, we approve the amendment Texas sent us
on October 6, 2005.
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--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
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
[[Page 8460]]
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.
This determination is based on the fact that the Texas program does not
regulate coal exploration and surface coal mining and reclamation
operations on Indian lands. Therefore, the Texas program 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 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 regulations did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 943
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 20, 2006.
Charles E. Sandberg,
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
0
1. The authority citation for part 943 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
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.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
October 6, 2005............... February 17, 2006 TSCMRA Section
134.055; and 16 TAC
12.108(a) and (b).
------------------------------------------------------------------------
[[Page 8461]]
[FR Doc. 06-1397 Filed 2-16-06; 8:45 am]
BILLING CODE 4310-05-P