[Federal Register Volume 72, Number 24 (Tuesday, February 6, 2007)]
[Rules and Regulations]
[Pages 5330-5333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1857]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[TX-056-FOR]
Texas Abandoned Mine Land Reclamation Plan
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 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 (RCT or Commission) proposed to assume responsibility of the
abandoned mine land reclamation (AML) emergency program in Texas. The
Commission also proposed to revise the Texas plan by updating portions
to reflect its current practices and by removing references to its old
regulations (Texas Coal Mining Regulations (TCMR)) and replacing them
with references to its recodified regulations (16 Texas Administrative
Code (TAC)).
DATES: Effective Date: February 6, 2007.
FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa
Field Office. Telephone: (918) 581-6430. E-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Texas Plan
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
[[Page 5331]]
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. Submission of the Amendment
By letter dated October 11, 2006 (Administrative Record No. TAML-
661), Texas sent us an amendment to its plan under SMCRA (30 U.S.C.
1201 et seq.) at its own initiative. Texas proposed to assume the AML
emergency program, update portions of its plan to reflect its current
practices, and remove references to its old regulations (TCMR) and
replace them with references to its recodified regulations (16 TAC). We
announced receipt of the proposed amendment in the November 13, 2006,
Federal Register (71 FR 66150). 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 13, 2006. We did not receive any public
comments.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. We are
approving the amendment.
A. AML Emergency Program Demonstration
Section 410 of SMCRA authorizes the Secretary to use funds under
the AML 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. In a Federal Register notice
dated September 29, 1982 (47 FR 42729), we invited states to amend
their AML plans for the purpose of undertaking emergency reclamation
programs on our behalf and published guidelines outlining three
requirements for State assumption of the AML emergency program. For us
to grant emergency authority to the State agency, the agency must
demonstrate that it has the following: (1) Statutory authority to
undertake emergencies, (2) technical capability to design and supervise
the emergency work, and (3) administrative mechanisms to respond
quickly to emergencies either directly or through contractors.
1. Statutory Authority
The Commission has had statutory authority under the Texas Surface
Coal Mining and Reclamation Act (TSCMRA) section 134.141 to administer
an emergency response program since approval of the Texas plan on June
23, 1980. In order to implement this authority, Texas' regulations at
16 TAC 134.143 and 134.144 provide for right of entry on any land where
an emergency exists. In a letter dated February 27, 1979, the Governor
of Texas designated the Commission as the State agency responsible for
the AML program in Texas. The Attorney General of Texas issued an
official opinion on March 20, 1980, stating that the Commission is
authorized under State law to conduct a State reclamation program in
accordance with the requirements of Title IV of the Federal Surface
Mining Control and Reclamation Act of 1977, the regulations adopted
pursuant thereto, and the State Reclamation Plan. Title IV of SMCRA
covers both the regular AML program and the emergency reclamation
program.
2. Technical Capability
The Commission has demonstrated through past performance that it
has the technical capability to implement an AML emergency program. In
its October 11, 2006, submission of the amendment, the Commission
included the following statement in its section of the Texas plan
titled, ``Staffing,'' to demonstrate the Commission's technical
capability to design and supervise the emergency work.
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.
Texas has conducted an AML program since 1980. We have found that
the Texas AML program is run in a cost efficient and professional
manner. Texas has conducted project design and construction work with a
high degree of competence and success. Projects are thoroughly analyzed
and conducted in compliance with all National Environmental Policy Act
(NEPA) requirements. Construction monitoring, post-construction
monitoring, and maintenance processes ensure the projects meet contract
specifications, project objectives, and program goals. Over the years,
Texas has designed and inspected AML emergency projects for us.
Technical capabilities used for these emergency reclamation projects
are the same as those used for normal, high priority reclamation
projects. We have found that Texas has developed and refined the in-
house investigation, design, and project administration abilities
necessary to administer an AML program and an AML emergency response
program.
3. Administrative Mechanisms
During a review of Texas' revised purchasing and procurement
procedures at section 884.13(d)(3) of the Texas plan, we found that the
Texas Building and Procurement Commission (TBPC) has delegated the
authority to make emergency purchases to all state agencies, including
the Commission. The TBPC has made the decision to declare an emergency
purchase the sole responsibility of the agencies and encourages the
agencies to obtain at least three informal bids, whenever possible, on
all emergency purchases. Emergency purchases exceeding $25,000 must be
posted in the Electronic State Business Daily and are subject to pre-
payment audit by the TBPC. Texas' contracting method will allow the
Commission adequate flexibility to address emergency conditions. Other
administrative processes required to implement the emergency program
are the same as those already in place for the Texas AML program.
In accordance with section 405 of SMCRA and 30 CFR 884.15, Texas
has submitted an amendment to its AML
[[Page 5332]]
plan, and we have determined, pursuant to 30 CFR 884.14, the following:
1. The public has been given adequate notice and opportunity to
comment on the amendment, and the record does not reflect major
unresolved controversies.
2. Views of other Federal agencies have been solicited and
considered.
3. The State has the legal authority, policies, and administrative
structure necessary to implement the amendment.
4. The proposed plan amendment meets all requirements of the
Federal AML program regulations at 30 CFR Chapter VII, Subchapter R.
5. The State has an approved State Regulatory Program.
6. The amendment is in compliance with all applicable State and
Federal laws and regulations.
We find that the proposed Texas plan amendment allowing the State
to assume responsibility for an AML emergency response reclamation
program on our behalf is in compliance with SMCRA and meets the
requirements of the Federal regulations. Therefore, we are approving
Texas' assumption of the AML emergency program.
B. Revisions to Texas' AML Plan
Texas updated its AML plan to (1) ensure that it has the
administrative mechanisms to quickly respond to AML emergencies either
directly or through contractors and (2) reflect current state
practices. The following table lists the sections of the AML plan that
Texas revised.
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Plan Section Topic
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30 CFR 884.13(c)(6).......................... Rights of Entry--A
description of the
policies and procedures
to be followed by the
Commission regarding
right of entry on lands
for the purpose of
performing AML program
activities.
30 CFR 884.13(d)(2).......................... Staffing--A description
of the administrative
and management structure
to be used in conducting
the reclamation program,
including the
incorporation of an
organizational chart in
the Texas plan.
30 CFR 884.13(d)(3).......................... Purchasing and
Procurement--A
description of the
policies and procedures
to be followed by the
Commission regarding
purchasing and
procurement for the AML
program.
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We find that the requirements of the revised Texas AML plan meet
the requirements of the Federal regulations at 30 CFR 884.13(a) through
(e). Therefore, we are approving them.
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 October 25, 2006, and November 7, 2006, under 30 CFR
884.14(a)(2) and 884.15(a), we requested comments on the amendment from
various Federal agencies with an actual or potential interest in the
Texas plan (Administrative Record No. TAML-661.1). No comments were
received.
V. OSM's Decision
Based on the above findings, we approve the amendment Texas sent us
on October 11, 2006. To implement this decision, we are amending the
Federal regulations at 30 CFR part 943, which codify decisions
concerning the Texas plan. We find that good cause exists under 5
U.S.C. 553(d)(3) to make this final rule effective immediately. Section
405 of SMCRA requires that the State's plan 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 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 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
[[Page 5333]]
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 13.5
(B)(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 regulations did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 943
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 30, 2007.
Brent Wahlquist,
Acting Director, Office of Surface Mining Reclamation and Enforcement.
0
For the reasons set out in the preamble, 30 CFR part 943 is amended as
set forth below:
PART 943--TEXAS
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1. The authority citation for part 943 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 943.25 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 943.25 Approval of Texas abandoned mine land reclamation plan
amendments.
* * * * *
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Original amendment submission Date of final
date publication Citation/description
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* * * * * * *
10/11/2006................... 2/6/2007 Emergency response
reclamation program;
AML Plan sections
884.13(c)(6), (d)(2)
and (d)(3).
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[FR Doc. E7-1857 Filed 2-5-07; 8:45 am]
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