64810 Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Rules and Regulations 

Original amendment submission 

date Date of final publication Citation/description 

*******

June 13, 2018 ................................ September 20, 2023 ...................... OAC 1513–3–01 Definitions. Addition of definitions of ‘‘Amicus curiae’’, ‘‘Ex parte communication’’, ‘‘In camera’’, ‘‘Pro hac vice’’, 

‘‘Subpoena ad testificandum’’, ‘‘Subpoena duces tecum’’. OAC 

1513–3–06(A)(4) Computation and Extension of Time. 

[FR Doc. 2023–20348 Filed 9–19–23; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 943 

[SATS No. TX–071–FOR; Docket No. OSM– 

2019–0011; S1D1S SS08011000 SX064A000 

234S180110; S2D2S SS08011000 

SX064A000 23XS501520] 

Texas Abandoned Mine Land 

Reclamation Plan and Regulations 

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 

(OSMRE), are approving an amendment 

to the Texas abandoned mine land 

reclamation plan (Texas Plan) and 

regulations under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act). Texas proposed to 

revise its existing Plan and regulations 

in response to OSMRE’s request to 

amend the Texas Plan and to improve 

the readability and efficiency of the 

document. 

DATES: October 20, 2023. 

FOR FURTHER INFORMATION CONTACT: Joe 

Maki, Director, Tulsa Field Office, 

Office of Surface Mining Reclamation 

and Enforcement, 1645 South 101st East 

Avenue, Suite 145, Tulsa, Oklahoma 

74128–4629. Telephone (918) 581–6430, 

Email: jmaki@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Texas Program and Plan 

II. Submission of the Amendment 

III. OSMRE’s Findings 

IV. Summary and Disposition of Comments 

V. OSMRE’s Decision 

VI. Procedural Determinations 

I. Background on the Texas Program 

and Plan 

The Abandoned Mine Land 

Reclamation (AML) 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 

primarily 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 for 

approval to the Secretary of the Interior 

a program (often referred to as a plan) 

for the reclamation of coal mines 

abandoned or otherwise left in an 

inadequate reclamation status at the 

time SMCRA was enacted. 

On June 23, 1980, the Secretary of the 

Interior approved the Texas Plan. You 

can find general background 

information on the Texas Plan, 

including the Secretary’s findings and 

the disposition of comments, in the June 

23, 1980, Federal Register (45 FR 

41937). You can also find later actions 

concerning Texas’s AML Program and 

Plan amendments at 30 CFR 943.25. 

II. Submission of the Amendment 

Under the authority of 30 CFR 884.15, 

OSMRE by letter dated March 8, 2019 

(Administrative Record No. TX–0707), 

directed Texas to update the Texas Plan. 

In that letter, known as a Part 884 letter, 

OSMRE indicated that the Texas Plan 

required revisions to meet the 

requirements of SMCRA as revised on 

December 20, 2006, by the Tax Relief 

and Health Care Act of 2006 (Pub. L. 

109–432), and in response to changes 

made to the implementing Federal 

regulations as revised on November 14, 

2008 (73 FR 67576), and February 5, 

2015 (80 FR 6435). The letter required 

Texas to provide either ‘‘(1) a proposed 

written Reclamation Plan amendment 

or, (2) a description of the Reclamation 

Plan amendments you will propose in 

response to the revised regulations or, 

(3) a detailed statement explaining why 

[Texas] believe[d] no amendment to 

[Texas’s] Reclamation Plan is 

necessary.’’ The letter further provided 

Texas with a summary of the changes to 

the Federal Program that might require 

amendments to the Texas Plan to ensure 

Texas’s program was consistent with 

and no less effective than the Federal 

Program. 

By letter dated December 3, 2019 

(Administrative Record No. TX–708), 

Texas sent us amendments to the Texas 

Plan and conforming State regulations. 

The Texas amendments are intended to 

address all required amendments 

identified in OSMRE’s letter dated 

March 8, 2019. Texas’s amendments 

will revise the State’s existing AML Plan 

and AML program regulations. 

We announced receipt of the 

proposed amendments in the July 20, 

2020, Federal Register (85 FR 43759). In 

the same document, we opened a public 

comment period and provided an 

opportunity for a public hearing or 

meeting on the amendment. We 

received three comments. We did not 

hold a public hearing or meeting 

because none were requested. The 

public comment period ended on 

August 19, 2020. 

In compliance with 30 CFR 884.14, 

Texas also allowed public input on the 

Texas Plan and held a public comment 

period during the development of the 

State regulations. The comment period 

on the regulatory amendments was from 

August 23, 2019, to September 23, 2019 

(Administrative Record No. TX–708.04). 

Texas received no comments. In 

addition, in November, 2019, the 

Railroad Commission of Texas provided 

public notice that it was considering 

adoption of the amended and restated 

Texas Plan and provided an opportunity 

for public input on the proposal. 

III. OSMRE’s Findings 

A. Texas’s Explanation for Not 

Amending Certain Provisions 

In response to our Part 884 letter, 

Texas stated that several items 

mentioned in the Part 884 letter do not 

appear to be applicable or require 

regulatory or plan changes. We agree. 

First, in our Part 884 letter, we 

advised that certified States such as 

Texas are no longer authorized to set 

aside AML funds for future reclamation. 

In response, Texas stated that it has not 

undertaken future reclamation set aside 

and is no longer eligible to do so. 

Second, in our Part 884 letter, we 

advised of certain changes related to 


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requirements and restrictions of acid 

mine drainage treatment and abatement 

programs for certified States. In 

response, Texas stated that it has not 

undertaken an acid mine drainage 

program and does not intend to create 

one in the foreseeable future. 

Third, in our Part 884 letter, we 

advised of changes to certain 

requirements for uncertified States. In 

response, Texas noted that these 

provisions are inapplicable to Texas as 

a certified State. 

Fourth and finally, we advised that 30 

CFR part 887 has been amended to 

clarify funding sources for subsidence 

insurance grants. In response, Texas 

stated that it does not operate a 

subsidence insurance program and does 

not intend to create one in the 

foreseeable future. 

Texas’s responses to these provisions 

of the Part 884 letter are appropriate. 

B. Revisions to the Texas Plan 

Our review of a proposed State 

Reclamation Plan amendment is 

governed by section 405 of SMCRA and 

30 CFR part 884. Section 405(e) of 

SMCRA requires a State Reclamation 

Plan to ‘‘generally identify the areas to 

be reclaimed, the purposes for which 

the reclamation is proposed, the 

relationship of the lands to be reclaimed 

and the proposed reclamation to 

surrounding areas, the specific criteria 

for ranking and identifying projects to 

be funded, and the legal authority and 

programmatic capability to perform 

such work[.]’’ Under 30 CFR 884.15(a), 

we follow the procedures of 30 CFR 

884.14 if the State proposes a major 

amendment that changes the objectives, 

scope, or major policies followed by the 

State in the conduct of its reclamation 

program. Texas generally proposes to 

respond to our Part 884 letter, update 

the objectives, scope, and policies of its 

program to reflect its status as a certified 

state, and amend its plan consistent 

with the 2006 changes to SMCRA and 

the associated changes to the 

implementing Federal regulations. 

Accordingly, we are considering Texas’s 

proposal as a major amendment and 

following the procedures set out in 30 

CFR 884.14. 

The rule at 30 CFR 884.14 requires: 

(1) public input, (2) solicitation and 

consideration of the views of interested 

Federal agencies, (3) a determination 

that the State has the legal authority, 

policies, and administrative structure 

necessary to carry out the proposed 

plan, (4) a determination that the 

proposed plan meets the requirements 

of 30 CFR Subchapter R, (5) a 

determination that the State has an 

approved regulatory program, and (6) a 

determination that the plan is in 

compliance with all applicable State 

and Federal laws and regulations. The 

rule at 30 CFR 884.13 describes the 

contents that each State Reclamation 

Plan must include. 

We make the following findings 

concerning Texas’s AML plan 

amendment under SMCRA and the 

Federal regulations at 30 CFR 884.13 

and 884.14. We are approving the Texas 

Plan amendment, with an exception, as 

described below. 

Before approving a State Reclamation 

Plan, we must ‘‘h[o]ld a public hearing 

on the plan within the State which 

submitted it, or ma[k]e a finding that the 

State provided adequate notice and 

opportunity for public comment in the 

development of the plan.’’ 30 CFR 

884.14(a)(1). 

We find that Texas provided adequate 

notice and opportunity for public 

comment in the development of the 

plan. A Railroad Commission of Texas 

Open Meeting Notice for November 19, 

2019, provided notice to the public that 

the Railroad Commission (Commission) 

was considering adoption of the 

amended and restated Texas Plan. The 

notice stated that the Commission 

would provide an opportunity for 

public input on any matter under the 

jurisdiction of the Commission, in 

accordance with a policy adopted on 

September 7, 2005. The notice further 

provided opportunities for concerned 

individuals to view the open meeting 

via webcast and offered 

accommodations and auxiliary aids or 

services for persons with a disability. 

Additionally, when Texas submitted 

the proposed Texas Plan, we announced 

receipt of the proposed amendment in 

the Federal Register, opened a 30-day 

public comment period, and provided 

an opportunity for a public hearing or 

meeting on the amendment. We did not 

hold a public hearing or meeting 

because none were requested. 

Before approving a State Reclamation 

plan, we must solicit and consider the 

views of other Federal agencies having 

an interest in the plan. 30 CFR 

884.14(a)(2). As discussed in Part IV 

below, we solicited the views of other 

Federal agencies and received no 

comments. 

Before approving a State Reclamation 

plan, we must determine that the State 

has an approved State regulatory 

program. 30 CFR 884.14(a)(5). 30 CFR 

part 943 codifies the approval and 

amendments of Texas’s state regulatory 

program. 

Finally, before approving a State 

Reclamation plan, we must determine 

that the State has the legal authority, 

policies, and administrative structure 

necessary to carry out the proposed 

plan, that the plan meets the 

requirements of 30 CFR Part VII 

Subchapter R (‘‘Abandoned Mine Land 

Reclamation’’), and that the plan is in 

compliance with all applicable State 

and Federal laws and regulations. As 

discussed in detail below, we find that 

the proposed Texas Plan meets these 

requirements and the specific content 

requirements of 30 CFR 884.13. 

Under 30 CFR 884.13(a)(1), a State 

Reclamation Plan must include a 

designation by the Governor of the State 

of the agency authorized to administer 

the State reclamation program and 

administer grants under Part 885 or 886. 

The revised Texas Plan includes a copy 

of the Governor’s 1979 letter designating 

the Railroad Commission of Texas as the 

agency authorized to administer the 

State AML Program and to receive and 

administer grants. Texas has 

incorporated the Governor’s letter 

designating the Railroad Commission as 

the agency authorized to administer the 

State AML Program and receive and 

administer grants in the Texas Plan as 

required under 30 CFR 884.13(a)(1). The 

1979 designation remains current and 

provides adequate authority for the 

Railroad Commission to carry out the 

plan. 

Under 30 CFR 884.13(a)(2), a State 

Reclamation Plan must include a legal 

opinion from the State Attorney General 

or the chief legal officer of the 

designated state agency that the agency 

has authority under State law to 

conduct the program in accordance with 

the requirements of Title IV of SMCRA. 

Texas provided a copy of the March 20, 

1980, legal opinion from the State 

Assistant Attorney General indicating 

that the Railroad Commission is the 

designated agency with the authority to 

conduct the AML Program in 

accordance with all requirements of 

SMCRA Title IV. Texas has incorporated 

the Assistant Attorney General’s letter 

in the Texas Plan as required under 30 

CFR 884.13(a)(2). The 1980 legal 

opinion remains current, and there have 

not been any State constitutional or 

statutory developments that would 

impair the ability of the Railroad 

Commission to conduct its AML 

Program in accordance with the 

requirements of Title IV of the Act. 

Federal regulations at 30 CFR 

884.13(a)(3) require a description of the 

policies and procedures of the State 

agency, including the purposes of the 

State AML Program. The Texas Plan 

includes a Policies and Procedures 

section that provides succinct 

descriptions of, and legal citations for, 

the purposes of its AML Program 

consistent with 30 CFR 884.13(a)(3). 


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Under 30 CFR 884.13(a)(3)(ii), a State 

Reclamation Plan must include the 

‘‘specific criteria, consistent with 

section 403 of the Act for ranking and 

identifying projects to be funded. . . .’’ 

Section 403 of SMCRA provides that 

expenditures must reflect certain 

priorities except as provided for under 

section 411 of SMCRA. Section 411(c) of 

SMCRA provides that expenditures of 

moneys according to Section 411(b) of 

SMCRA must reflect the objectives and 

priorities of Section 411(c) in lieu of the 

priorities set forth in section 403. 

OSMRE’s implementing regulations at 

30 CFR 874.13 and 875.15 respectively 

list the priorities for coal and noncoal 

AML reclamation programs. 

In our Part 884 letter, we advised 

Texas that certified States must comply 

with Parts 874 and 875 to maintain 

certification status. We further advised 

that the 2006 SMCRA amendments 

revised the reclamation priorities in 

section 403 by removing ‘‘general 

welfare’’ from Priorities 1 and 2, 

including an ‘‘adjacent to’’ provision in 

Priorities 1 and 2, and deleting Priorities 

4 and 5. 

The revised Texas Plan includes a 

section entitled ‘‘Ranking and Selecting 

Sites’’ that states that Texas will use the 

priority system as outlined in 30 CFR 

parts 874 or 875 and operate noncoal 

reclamation projects under 30 CFR part 

875. The Plan also includes the 

prioritization matrix Texas uses to 

assess and prioritize potential project 

areas for reclamation. This section is 

consistent with the Plan content 

requirements of 30 CFR 884.13(a)(3)(ii), 

which requires specific criteria, 

consistent with SMCRA, for ranking and 

identifying projects to be funded; 30 

CFR parts 874 and 875, which list 

priorities; and the direction in our Part 

884 letter. 

Reclamation projects will not be 

undertaken without first receiving an 

Authorization to Proceed from OSMRE. 

This is in accordance with section 405(l) 

of SMCRA and consistent with 30 CFR 

874.15 and 875.19, which provide 

limited liability coverage to certified 

State coal and noncoal reclamation 

activities, unless the costs or damages 

were the result of gross negligence or 

intentional misconduct. The 

requirement to receive written 

authorization from OSMRE before the 

expenditure of construction funds on an 

individual project is documented as a 

grant condition under 30 CFR 885.16(e). 

Under 30 CFR 844.13(a)(3)(iii), a State 

Reclamation Plan must include policies 

and procedures for ‘‘coordination of 

reclamation work among the State 

reclamation program, the Rural 

Abandoned Mine Program administered 

by the Soil Conservation Service, the 

reclamation programs of any Indian 

tribes located within the States, and 

[OSMRE’s] reclamation programs . . .’’ 

The revised Texas Plan includes a 

section entitled ‘‘Interagency 

Coordination’’ that indicates that the 

State will coordinate with other 

agencies and offices including the 

Natural Resources Conservation Service 

and OSMRE, as required, as well as 

multiple other State and Federal 

entities. By indicating it will coordinate 

and work with all required agencies, 

Texas’s proposed section is consistent 

with the requirements of 30 CFR 

884.13(a)(3)(iii). 

Under 30 CFR 884.13(a)(3)(iv), a State 

Reclamation Plan must include policies 

and procedures about land acquisition, 

management, and disposal under 30 

CFR part 879. In our Part 884 letter, we 

notified Texas that it ‘‘must comply 

with [30 CFR part 879] when expending 

funds awarded after October 1, 2007 

. . .’’ We further noted that all ‘‘moneys 

received from the sale of property 

acquired under [section 407 of SMCRA] 

is disposed of as if it were unused funds 

under 30 CFR 886.20 . . .’’ The revised 

Texas Plan includes a section entitled 

‘‘Land Acquisition, Management and 

Disposal’’ that states that ‘‘acquisition, 

management, and disposal of 

abandoned mine(s) land shall be in 

accordance with applicable provisions 

of 30 CFR part 879 and Texas Natural 

Resources Code Chapter 134 [(Texas 

Surface Coal Mining and Reclamation 

Act (TSCMARA))].’’ By committing to 

act in accordance with 30 CFR part 879, 

Texas has taken action to address this 

issue on a plan level. See 30 CFR 

879.15(h) (‘‘You must return all moneys 

received from disposal of land under 

this part to us. We will handle all 

moneys received under this paragraph 

as unused funds in accordance with 

§§ 885.19 and 886.20 of this chapter.’’). 

Under 30 CFR 884.13(a)(3)(v), a State 

Reclamation Plan must include policies 

and procedures about reclamation on 

private land in accordance with 30 CFR 

part 882. The revised Texas Plan 

includes a section entitled ‘‘Reclamation 

on Private Land’’ that indicates that the 

State will carry out reclamation 

activities on private lands in accordance 

with 30 CFR part 882 and the provisions 

in Texas Natural Resources Code 

Chapter 134 about reclamation work on 

private land. This section of the Texas 

Plan provides the State’s policies and 

procedures for reclamation on private 

lands and is therefore consistent with 

the State Reclamation Plan content 

requirements of 30 CFR 884.13(a)(3)(v). 

Furthermore, by committing to act in 

accordance with 30 CFR part 882 and 

the previously approved provisions of 

TSCMARA, Texas’s proposal meets the 

requirements of Federal regulations. 

Before the 2006 amendments to 

SMCRA, 30 U.S.C. 1238(a) provided 

that, ‘‘[n]o lien shall be filed against the 

property of any person, in accordance 

with this subsection, who owned the 

surface prior to May 2, 1977, and who 

neither consented to nor participated in 

nor exercised control over the mining 

operation which necessitated the 

reclamation performed hereunder.’’ In 

the 2006 amendments to SMCRA, the 

May 2, 1977, limitation was deleted. In 

our Part 884 letter, we notified Texas 

that this language was removed. Texas 

removed this language from State statute 

in June 2007, and the Texas Plan does 

not include the former language. 

Under 30 CFR 884.13(a)(3)(vi), a State 

Reclamation Plan must include policies 

and procedures about rights of entry 

under 30 CFR part 877. Our Part 884 

letter did not note any necessary 

changes to policies and procedures 

about rights of entry. The Texas Plan 

includes a section entitled ‘‘Rights of 

Entry’’ that indicates that the State will 

take all reasonable actions to obtain 

written voluntary permission from a 

landowner before conducting 

reclamation activities. The Texas Plan 

further outlines the authority under the 

provisions in Chapter 134 of TSCMARA 

and the conditions under which the 

State can execute reclamation activities 

if the landowner will not provide 

consent. This section of the Texas Plan 

is consistent with the State Reclamation 

Plan content requirements of 30 CFR 

884.13(a)(3)(vi). Furthermore, the State’s 

policies and procedures about rights of 

entry are consistent with 30 CFR part 

877. 

Under 30 CFR 884.13(a)(3)(vii), a 

State Reclamation Plan must include 

policies and procedures for public 

participation and involvement in the 

preparation of the State Reclamation 

Plan and in the State reclamation 

program. The revised Texas Plan does 

not meet this requirement. It states only 

that the Commission must conform to 

the Texas Administrative Procedure Act 

when it issues or amends rules, or 

issues permits under TSCMARA and 

allows opportunity for public comment 

on adoption or amendment of rules. The 

general citations in the revised Texas 

Plan to the Texas Administrative 

Procedure Act relate to rulemaking and 

permit issuance and do not clearly 

provide procedures for participation 

and involvement in the preparation of 

the Texas Plan or in activities under the 

State reclamation program. Therefore, 

we are not approving this portion of the 

amendment. Texas may continue to rely 


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on the public participation procedures 

established in its existing plan or, if 

desired, propose a new amendment to 

its public participation policies and 

procedures that also meets the 

requirements of 30 CFR 

884.13(a)(3)(vii). 

As discussed above, the revised Texas 

Plan includes sections responding to the 

requirements of 30 CFR 884.13(a)(3)(i) 

through (vii). These sections provide 

updated descriptions of the State’s 

policies and procedures for conducting 

its AML Program including: the 

purposes of the AML Program; specific 

criteria for ranking and identifying 

projects to be funded; coordination of 

reclamation work between the State and 

all applicable State and Federal 

agencies; land acquisition; reclamation 

on private land; and right of entry. The 

revised Texas Plan, with the exception 

discussed above, is consistent with the 

State Reclamation Plan content 

requirements of 30 CFR 884.13(a)(3). 

Federal regulations at 30 CFR 

884.13(a)(4)(i) require a description of 

the designated agency’s organization 

and relationship to other State entities 

that may participate in or augment the 

State’s AML reclamation abilities. The 

Texas Plan includes a section entitled 

‘‘884.13 Administrative Framework, 

884.13(a)(4)(i) Commission Structure 

and Relationships,’’ that provides an 

organizational chart depicting the 

Railroad Commission of Texas, Surface 

Mining & Reclamation Division, and the 

Abandoned Mine Land and Reclamation 

Program’s place within it. 

Federal regulations at 30 CFR 

884.13(a)(4)(ii) require a description of 

the personnel staffing policies that will 

govern assignments within the AML 

Program. The revised Texas Plan 

includes a section entitled ‘‘Staffing and 

Personnel Policies’’ that provides the 

information required under 30 CFR 

884.13(a)(4)(ii). 

Federal regulations at 30 CFR 

884.13(a)(4)(iii) require State purchasing 

and procurement systems to meet the 

requirements of Office of Management 

and Budget Circular A–102, Attachment 

0, relating to ‘‘Grants and Cooperative 

Agreements with State and Local 

Governments.’’ Federal grantmaking 

agencies were previously required to 

issue a grants management common rule 

to adopt governmentwide terms and 

conditions for grants to States and local 

governments. As a result, we notified 

Texas in our Part 884 letter that the 

attachments to Circular A–102, 

including Attachment 0 referenced in 30 

CFR 884.13(a)(4)(iii), have been 

replaced by the grants management 

common rule at 2 CFR part 200. The 

Federal regulations have not yet been 

updated to reflect this change; however, 

it is reflected in the revised Texas Plan 

under the section entitled ‘‘Purchasing 

and Procurement,’’ which indicates its 

purchasing and procurement policies 

are consistent with 2 CFR part 200. 

Additionally, Texas revised its plan to 

acknowledge, effective September 1, 

2019, that the Railroad Commission has 

delegated authority to enter in all 

purchasing functions related to 

procurement under TSCMARA. This 

section provides descriptions of 

purchasing and procurement systems 

consistent with the requirements of 30 

CFR 884.13(a)(4)(iii). 

Federal regulations at 30 CFR 

884.13(a)(4)(iv) require a description of 

the accounting system to be used by the 

agency including specific procedures for 

operation of the State AML Fund. The 

revised Texas Plan includes a section 

entitled ‘‘Accounting System’’ that 

describes the Centralized Accounting 

and Payroll/Personnel System uniform 

statewide accounting system. 

Referenced Texas Government Code 

Title 10 Subtitle C provides the State 

accounting and auditing procedures. As 

a condition of its annual grant (and 

consistent with the obligations outlined 

in the previous paragraph), Texas is 

required to comply with all the 

conditions of 2 CFR part 200, which 

addresses administrative requirements, 

cost principles, and audit requirements 

for Federal awards. 

As discussed above, the revised Texas 

Plan includes four sections providing 

revised descriptions of the State’s 

administrative and management 

structure, staffing and personnel 

Policies, purchasing and procurement; 

and accounting system. By providing all 

required descriptions of the 

administrative and management 

structure of the State AML agency, the 

revised Texas Plan is consistent with all 

State Reclamation Plan content 

requirements under 30 CFR 884.13(a)(4). 

Under 30 CFR 884.13(a)(5), a State 

Reclamation Plan must include a 

general description, derived from 

available data, of the reclamation 

activities to be conducted under the 

State Reclamation Plan. The revised 

Texas Plan includes a section entitled 

‘‘Description of Reclamation Activities.’’ 

Texas provided general descriptions 

derived from available data of the 

reclamation activities to be conducted 

under the State Reclamation Plan 

including: a map showing the general 

location of known or suspected eligible 

lands and waters; a description of the 

problems occurring on those lands and 

waters; and how the Texas Plan 

proposes to address each of the 

problems. Because Texas is certified, the 

State has already completed reclamation 

of all known high priority coal hazards. 

Individual project approval and funding 

are appropriately handled through the 

Authorization to Proceed process under 

30 CFR 885.16(e). The revised Texas 

Plan sections entitled ‘‘Description of 

Reclamation Activities,’’ ‘‘Map of 

Eligible Reclamation Locations,’’ 

‘‘Description of Problems,’’ and ‘‘How 

Reclamation Activities Address 

Problems’’ are consistent with the State 

Reclamation Plan content requirements 

of 30 CFR 884.13(a)(5) in providing 

general descriptions of reclamation 

activities to be conducted, including 

maps, descriptions of AML problems, 

and descriptions of hazard abatement 

strategies. 

Under 30 CFR 884.13(a)(6), a State 

Reclamation Plan must include a 

general description, derived from 

available data, of the conditions 

prevailing in the different geographic 

areas of the State where reclamation is 

planned. The revised Texas Plan 

includes sections entitled: ‘‘Conditions 

in Geographic Areas’’; ‘‘Economic 

Base’’; ‘‘Significant Esthetic, Historic or 

Cultural, and Recreational Values’’; and 

‘‘Endangered and Threatened Plant, 

Fish, and Wildlife and Their Habitat’’ 

that provide general descriptions on 

each subject derived from available data 

on the conditions prevailing in the areas 

of the State where reclamation may 

occur. The revised Texas Plan provides 

descriptions of the prevailing conditions 

consistent with the requirements of 30 

CFR 884.13(a)(6). 

Under 30 CFR 884.13(b), a certified 

State Reclamation Plan must include a 

commitment to address eligible coal 

problems found or occurring after 

certification. In our Part 884 letter, we 

reiterated this requirement. The revised 

Texas Plan includes a section entitled 

‘‘Commitment to Address Eligible Coal 

Problems’’ that provides a commitment 

to address all eligible coal problems 

found or occurring after certification as 

required under 30 CFR 875.13(a)(3) and 

875.14(b). Texas has indicated it will 

prioritize coal hazards over noncoal. As 

a condition of certification on May 21, 

1992 (57 FR 21640), Texas agreed: ‘‘If a 

coal problem occurs or is identified 

sometime in the future, Texas must seek 

immediate funding for reclaiming the 

coal-related problem. In the event of 

concurrence with certification by the 

Secretary, Texas has agreed to this 

condition.’’ In section 884.13(a)(3)(ii) of 

the amendment, Texas commits to 

compliance with the priority systems 

outlined in 30 CFR part 874 or 30 CFR 

part 875. By committing to give priority 

to addressing eligible coal problems 

found or occurring after certification as 


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required in 30 CFR 875.13(a)(3) and 

875.14(b), the revised Texas Plan is 

consistent with the State Reclamation 

Plan content requirements of 30 CFR 

884.13(b). 

In our Part 884 letter, we notified 

Texas that the State Reclamation Plan 

for a certified State may provide for 

construction of specific public facilities 

related to coal or minerals development 

in accordance with 30 CFR 884.17. 

Texas declined to include this 

provision. 

In our Part 884 letter, we notified 

Texas that ‘‘[c]ertified States . . . are 

covered by the limited liability 

provision when they are performing’’ 

coal reclamation and certain noncoal 

reclamation. As background, in 2015, 

we issued the rule Abandoned Mine 

Land Reclamation Program; Limited 

Liability for Noncoal Reclamation by 

Certified States and Indian Tribes, 80 

FR 6435 (Feb. 5, 2015). The rule gave 

certified states two options for 

conducting noncoal reclamation 

projects. First, a certified State could 

expend its prior balance replacement 

funds and certified in lieu funds on 

projects outside the scope of a SMCRA 

noncoal AML reclamation program but 

without limited liability protection. 

Second, a certified State can receive 

limited liability protection if it 

voluntarily uses its prior balance 

replacement funds and certified in lieu 

funds to conduct noncoal reclamation 

projects pursuant to a SMCRA noncoal 

AML reclamation program under the 

provisions of section 411(b)–(g) of 

SMCRA, 30 CFR part 875, and other 

applicable regulations. The rule placed 

additional administrative requirements 

on States that voluntarily choose to 

conduct noncoal reclamation projects 

under the second option because 

OSMRE must verify that such projects 

meet applicable statutory and regulatory 

requirements. 80 FR at 6438–39. The 

Texas Plan states that noncoal 

reclamation projects will be operated 

under 30 CFR part 875 to receive the 

limited liability protections of SMCRA. 

Additionally, as discussed in more 

detail below, Texas retains previously 

approved regulatory language 

corresponding to the Federal statutory 

and regulatory limited liability 

provisions. 

In the 2015 rule, we revised Part 875 

to ‘‘set forth the procedures that 

certified states must follow if they 

voluntarily choose to use their Title IV 

funding for noncoal reclamation 

projects under Part 875 . . . pursuant to 

an approved SMCRA noncoal AML 

reclamation plan.’’ 80 FR at 6439. Those 

procedures included the contractor 

eligibility requirements set forth in 30 

CFR 875.20. In our Part 884 letter, citing 

section 405(l) of SMCRA and 30 CFR 

875.20, we notified Texas that a 

certified State must comply with 

contractor eligibility requirements when 

they are voluntarily conducting noncoal 

reclamation. Texas’s existing regulation 

at 16 Texas Administrative Code (TAC) 

section 12.807 requires every successful 

bidder for an AML contract to be 

eligible under section 12.215 (Review of 

Permit Applications) at the time of 

contract award to receive a permit or 

conditional permit and requires that 

bidder eligibility be confirmed by 

OSMRE’s Applicant/Violator System for 

each contract to be awarded. 

Accordingly, Texas’s program meets the 

contractor eligibility requirements set 

forth in 30 CFR 875.20 and our Part 884 

letter. 

Thus, we find that the revised Texas 

Plan, with the one exception noted 

above, meets all content requirements 

stipulated under 30 CFR 884.13 while 

also updating the State Reclamation 

Plan and regulations consistent with 

changes made to the Federal program in 

2006, 2008, and 2015. The revised Texas 

Plan, therefore, meets the requirements 

of OSMRE’s March 6, 2019, letter, and 

we approve it. 

B. Revisions to Texas’s AML Regulations 

Texas proposes amendments to 

regulations governing its AML program 

at 16 TAC sections 12.801–12.809, 

12.811, 12.812, 12.814–12.816, and 

12.818–12.823. Generally, the changes 

align Railroad Commission rules with 

SMCRA and the corresponding Federal 

regulations. 

Non-substantive changes can be found 

in sections 16 TAC sections 12.801, 

12.802, 12.806, 12.807, 12.809, 12.811, 

12.812, 12.814, 12.816, 12.818, 12.820, 

12.821, and 12.822. These changes 

define terms used throughout the 

regulations, capitalize ‘‘Commission,’’ 

correct rule citations and crossreferences, and clarify existing language. 

These changes have no substantive 

impact on the effectiveness of the 

regulation. 

Texas proposes to amend 16 TAC 

section12.803(a)(3) to add ‘‘or any prior 

balance replacement funds may be 

used.’’ to the end of the paragraph. This 

allows Texas to use prior balance 

replacement funds where a forfeited 

bond is not sufficient to pay the cost of 

reclamation. This is consistent with 30 

CFR 874.12. 

Texas’s previously approved 

regulations at 16 TAC section 12.804 

state that reclamation project 

expenditures ‘‘shall reflect the priorities 

of Section 403(a) of the Federal Act.’’ In 

our Part 884 letter, we notified Texas 

that the 2006 amendments to SMCRA 

removed the phrase ‘‘general welfare’’ 

from Priorities 1 and 2; added an 

‘‘adjacent to’’ provision to Priorities 1 

and 2, defining that term as 

‘‘geographically contiguous’’; and 

eliminated Priorities 4 and 5. In 

response, Texas proposes to amend 16 

TAC section 12.804 to state that projects 

shall reflect the priorities of Section 

403(a) ‘‘in the order stated’’ and list the 

priorities from 30 CFR 874.13(a) in the 

text of 16 TAC section 12.804. Texas 

also proposes to provide an updated 

reference to OSMRE’s ‘‘Final Guidelines 

for Reclamation Programs and Projects.’’ 

The amended language of 16 TAC 

section 12.804 is in accordance with 

section 403(a) of SMCRA, consistent 

with 30 CFR 874.13(a), and meets the 

requirements of our Part 884 letter. 

In our Part 884 letter, we further 

notified Texas that stand-alone Priority 

3 reclamation is restricted to projects 

using prior balance replacement funds, 

projects undertaken after the completion 

of Priority 1 and 2 sites, and projects 

completed ‘‘in conjunction with’’ 

Priority 1 or 2 reclamation projects. We 

noted that projects ‘‘in conjunction 

with’’ Priority 1 and 2 projects must 

either facilitate Priority 1 or 2 

reclamation or provide reasonable 

savings toward reclaiming all Priority 3 

coal problems. Texas is retaining 

previously approved language in 16 

TAC § 12.804(c) that addresses these 

aspects of our Part 884 letter. 

The 2006 amendments removed 

section 403(a)(4) of SMCRA. In 2008, we 

amended 30 CFR 874.14 to change the 

section heading and revise paragraph (a) 

related to water supply restoration. In 

response, Texas proposes to amend 16 

TAC § 12.805 to match the 2008 revision 

to the Federal regulation. The revised 

language is consistent with 30 CFR 

874.14. 

As discussed in the Texas Plan 

section above, in our Part 884 letter, we 

notified Texas that its State Reclamation 

Plan must include a commitment to 

address eligible coal problems found 

after certification as required in 30 CFR 

875.13(a)(3) and 875.14(b). Previously, 

16 TAC section 12.808 stated that if 

eligible coal problems were found or 

occurred after certification, Texas would 

‘‘address the coal problem utilizing state 

share funds no later than the next grant 

cycle, subject to the availability of funds 

distributed to the commission in the 

cycle.’’ As amended, 16 TAC section 

12.808 states that Texas will ‘‘submit to 

OSMRE a plan that describes the 

approach and funds that will be used to 

address those problems in a timely 

manner.’’ The amended language is in 

accordance with the statute, consistent 


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with the requirements of 30 CFR 

875.14(b), and meets the requirements 

of our Part 884 letter. 

Unrelated to our Part 884 letter, Texas 

amended the appraisal valuation 

method in 16 TAC section 12.815 to 

add: ‘‘The appraisal shall state the 

estimated fair market value of the land 

as adversely affected by past mining and 

the estimated fair market value of the 

property as reclaimed.’’ This edit is 

consistent with the Federal counterpart 

at 30 CFR 882.12. 

Previously, 16 TAC section 

12.819(a)(2)(C) stated that Texas could 

acquire coal refuse disposal sites if it 

made certain written findings, including 

a finding that acquisition of coal refuse 

disposal sites and the coal refuse on 

those sites would serve the purposes of 

Texas’s program. The regulation at 16 

TAC section 12.819 also provided that 

OSMRE must approve acquisitions in 

advance. The Federal regulation at 30 

CFR 879.11(b), as amended, states that 

a certified State conducting noncoal 

reclamation projects under Part 875, if 

approved in advance, may acquire coal 

refuse disposal sites with moneys from 

the Abandoned Mine Reclamation Fund 

and with prior balance replacement 

funds and certified in lieu funds. Texas 

proposes to remove the discussion of 

coal refuse disposal sites from 16 TAC 

section 12.819(a)(2)(C) and add a new 

paragraph § 12.819(c) that is identical to 

the language of 30 CFR 879.11(b). The 

proposed amendment is consistent with 

the Federal counterpart at 30 CFR 

879.11. 

Previously, 16 TAC section 12.823(f) 

stated that all moneys received from 

disposal of land would be deposited in 

the Texas Abandoned Mine Reclamation 

Fund. In our Part 884 letter, we notified 

Texas that all ‘‘moneys received from 

the sale of property acquired under 

[section 407 of SMCRA] is disposed of 

as if it were unused funds under 30 CFR 

886.20 . . .’’ In response, Texas 

proposes to amend 16 TAC section 

12.823(f) to state that all moneys 

received will be returned to OSMRE. 

The proposed amendment is consistent 

with the Federal counterpart at 30 CFR 

879.15. 

We find that the proposed regulations 

are in accordance with SMCRA and 

consistent with Federal regulation. 

Therefore, we approve the amendments. 

IV. Summary and Disposition of 

Comments 

Public Comments 

During our public comment period on 

the amendments, we received two 

anonymous public comments and one 

named comment. One anonymous 

comment expressed the 

recommendation that the state of Texas 

be held liable for all the extractive 

industry damage not covered by the 

entity responsible for the damage and 

cleanup. We did not take any action 

based on this comment as it was outside 

the scope of this review. The other 

anonymous comment and the named 

comment did not contain any 

substantive feedback on the proposed 

rule. 

None of the comments asked for any 

changes to the Texas Plan or 

regulations, and no further action by us 

is required. These comments are 

available in their entirety at 

www.regulations.gov. 

Federal Agency Comments 

Pursuant to 30 CFR 884.15(a) and 

884.14(a)(2), on December 11, 2019, 

OSMRE solicited comments on the 

proposed amendments from various 

Federal agencies with an actual or 

potential interest in the Texas Plan 

(Administrative Record No. TX– 

0708.01). We did not receive any 

comments. 

Environmental Protection Agency (EPA) 

Concurrence and Comments 

OSMRE solicited EPA’s comments on 

the proposed amendments 

(Administrative Record No. TX– 

0708.01) on December 11, 2019. The 

EPA did not respond to our request. 

State Historical Preservation Officer 

(SHPO) and the Advisory Council on 

Historic Preservation (ACHP) 

OSMRE solicited comments on the 

proposed amendments from the SHPO 

(Administrative Record No. TX– 

0708.01) and ACHP (Administrative 

Record No. TX–0708) on December 11, 

2019. Neither responded to our request. 

V. OSMRE’s Decision 

Based on the above findings, we are 

approving Texas’s AML Plan and 

Reclamation Program amendments that 

were submitted on December 3, 2019 

(Administrative Record No. TX–0708), 

with the exception described above. 

To implement this decision, we are 

amending the Federal regulations at 30 

CFR part 943, which codify decisions 

concerning the Texas Plan. In 

accordance with the Administrative 

Procedure Act, this rule will take effect 

30 days after the date of publication. 

VI. Procedural Determinations 

Executive Order 12630—Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

This rule would not affect a taking of 

private property or otherwise have 

taking implications that would result in 

public property being taken for 

government use without just 

compensation under the law. Therefore, 

a takings implication assessment is not 

required. This determination is based on 

an analysis of the corresponding Federal 

regulations. 

Executive Orders 12866—Regulatory 

Planning and Review and 13563— 

Improving Regulation and Regulatory 

Review 

Executive Order (E.O.) 12866, as 

amended by E.O. 14094, provides that 

the Office of Information and Regulatory 

Affairs in the Office of Management and 

Budget (OMB) will review all significant 

rules. Pursuant to OMB guidance, dated 

October 12, 1993, the approval of State 

program amendments is exempted from 

OMB review under Executive Order 

12866. Executive Order 13563, which 

reaffirms and supplements Executive 

Order 12866, retains this exemption. 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

reviewed this rule as required by 

Section 3(a) of Executive Order 12988. 

The Department has determined that 

this Federal Register notice meets the 

criteria of Section 3 of Executive Order 

12988, which is intended to ensure that 

the agency review its legislation and 

regulations to minimize litigation, and 

that the agency’s legislation and 

regulations provide a clear legal 

standard for affected conduct, rather 

than a general standard, and promote 

simplification and burden reduction. 

Because Section 3 focuses on the quality 

of Federal legislation and regulations, 

the Department limited its review under 

this Executive Order to the quality of 

this Federal Register notice and to 

changes to the Federal regulations. The 

review under this Executive Order did 

not extend to the language of the Texas 

Plan or to the Plan amendment that the 

State of Texas submitted. 

Executive Order 13132—Federalism 

This rule is not a ‘‘[p]olicy that [has] 

Federalism implications’’ as defined by 

Section 1(a) of Executive Order 13132 

because it does not have ‘‘substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 


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64816 Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Rules and Regulations 

distribution of power and 

responsibilities among the various 

levels of government.’’ Instead, this rule 

approves an amendment to the Texas 

Plan submitted and drafted by that 

State. OSMRE reviewed the submission 

with fundamental federalism principles 

in mind as set forth in Section 2 and 3 

of the Executive Order and with the 

principles of cooperative federalism as 

set forth in SMCRA. See, e.g., 30 U.S.C. 

1201(f). As such, pursuant to the 

provisions in section 503(a)(1) and (7) 

(30 U.S.C. 1253(a)(1) and (7)), OSMRE 

reviewed the revised Texas Plan to 

ensure that it is ‘‘in accordance with’’ 

the requirements of SMCRA and 

‘‘consistent with’’ the regulations issued 

by the Secretary pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

The Department of the Interior strives 

to strengthen its government-togovernment relationship with Tribes 

through a commitment to consultation 

with Tribes and recognition of their 

right to self-governance and Tribal 

sovereignty. We have evaluated this rule 

under the Department’s consultation 

policy and under the criteria in 

Executive Order 13175 and have 

determined that it has no substantial 

direct effects on federally recognized 

Tribes or on the distribution of power 

and responsibilities between the Federal 

government and Tribes. Therefore, 

consultation under the Department’s 

Tribal consultation policy is not 

required. The basis for this 

determination is that our decision is on 

the Texas program, which does not 

include Indian lands or regulation of 

activities on Indian lands. AML 

reclamation on Indian lands is regulated 

independently under the applicable, 

approved Federal program or a Tribal 

AML program. 

Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Executive Order 13211 requires 

agencies to prepare a Statement of 

Energy Effects for a rulemaking that is 

(1) considered significant under 

Executive Order 12866, as amended by 

E.O. 14094, 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 

significant energy action under the 

definition in Executive Order 13211, a 

Statement of Energy Effects is not 

required. 

National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment. We 

are not required to provide a detailed 

statement under the National 

Environmental Policy Act of 1969 

because this rule qualifies for a 

categorical exclusion under the U.S. 

Department of the Interior Departmental 

Manual, part 516, section 13.5(B)(29). 

National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act (NTTAA; 15 U.S.C. 3701 et seq.) 

directs OSMRE to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. OMB Circular 

A–119 at p. 14. This action is not 

subject to the requirements of section 

12(d) of the NTTAA because application 

of those requirements would be 

inconsistent with SMCRA. 

Paperwork Reduction Act 

This rule does not include requests 

and requirements of an individual, 

partnership, or corporation to obtain 

information and report it to a Federal 

agency. As this rule does not contain 

information collection requirements, a 

submission to the Office of Management 

and Budget under the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.) 

is not required. 

Regulatory Flexibility Act 

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. 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. 

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 on an analysis of 

the corresponding Federal regulations, 

which were determined not to 

constitute a major rule. 

Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on State, local, or 

Tribal governments, or the private sector 

of more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, local, or Tribal 

governments or the private sector. This 

determination is based on an analysis of 

the corresponding Federal regulations, 

which were determined not to impose 

an unfunded mandate. Therefore, a 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

List of Subjects in 30 CFR Part 943 

Intergovernmental relations, Surface 

mining, Underground mining. 

William L. Joseph, 

Acting Regional Director, OSMRE IR 3, 4 and 

6. 

For the reasons set out in the 

preamble, 30 CFR part 943 is amended 

as follows: 

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 943.25 is amended in the 

table by adding an entry for ‘‘December 

3, 2019’’ at the end of the table to read 

as follows: 

§ 943.25 Approval of Texas abandoned 

mine land reclamation plan amendments. 

* * * * * 


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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Rules and Regulations 64817 

Original 

amendment 

submission date 

Date of final 

publication Citation/description 

*******

December 3, 2019 ........... September 20, 2023 ...... Replace AML Plan in response to OSMRE 884 Letter. Updates AML Plan to be consistent with changes to Federal program and extends limited liability protection for certain coal and noncoal reclamation projects. 16 TAC Texas Administrative Code Sections: 12.801; 12.802; 12.803; 12.804; 12.805; 12.806; 12.807; 12.808; 12.809; 

12.811; 12.812; 12.814; 12.815; 12.815; 12.816; 12.818; 12.819; 12.820; 12.821; 

12.822; 12.823. 

[FR Doc. 2023–20018 Filed 9–19–23; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2023–0004] 

RIN 1625–AA00 

Safety Zone; Pacific Ocean; Santa 

Catalina Island, California 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Temporary final rule. 

SUMMARY: The U.S. Coast Guard is 

establishing a temporary safety zone for 

the navigable waters in the Pacific 

Ocean on the East end of Santa Catalina 

Island, California. This safety zone is 

needed to protect personnel, vessels, 

and the marine environment from 

potential hazards created by ongoing 

recovery operations relating to the 

grounding of the 62-foot F/V PACIFIC 

KNIGHT. Entry of persons or vessels 

into this safety zone is prohibited unless 

specifically authorized by the Captain of 

the Port Los Angeles-Long Beach, or his 

designated representative. 

DATES: This rule is effective without 

actual notice from September 20, 2023, 

through September 22, 2023. For the 

purposes of enforcement, actual notice 

will be used from September 15, 2022, 

through September 20, 2023. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2023– 

0004 in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rule. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this rule, call 

or email LCDR Kevin Kinsella, 

Waterways Management Division, U.S. 

Coast Guard Sector Los Angeles-Long 

Beach; telephone (310) 467–2099, email 

D11-SMB-SectorLALB-WWM@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

COTP Captain of the Port Los Angeles-Long 

Beach 

DHS Department of Homeland Security 

E.O. Executive order 

FR Federal Register 

NPRM Notice of proposed rulemaking 

Pub. L. Public Law 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

The Coast Guard is issuing this 

temporary rule without prior notice and 

opportunity to comment pursuant to 

authority under section 4(a) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because this is 

an emergency response to a vessel 

grounding that occurred today, and 

immediate action is needed to respond 

to potential safety hazards associated 

with the emergency recovery operations. 

It is impracticable to publish an NPRM 

because we must establish this safety 

zone by September 15, 2023. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. Delaying the effective date of 

this rule would be contrary to public 

interest because immediate action is 

needed to ensure the safety of persons, 

vessels, and the marine environment in 

the vicinity of the East end of Santa 

Catalina Island during emergency 

recovery operations. 

III. Legal Authority and Need for Rule 

The Coast Guard is issuing this rule 

under authority in 46 U.S.C. 70034. The 

Captain of the Port Los Angeles-Long 

Beach (COTP) has determined that 

potential hazards associated with 

emergency recovery operations starting 

September 15, 2023, will be a safety 

concern for anyone within a 300-yard 

radius of the grounded fishing vessel in 

the vicinity of the East end of Santa 

Catalina Island. This rule is needed to 

protect personnel, vessels, and the 

marine environment in the navigable 

waters within the safety zone while 

recovery operations take place. 

IV. Discussion of the Rule 

This rule establishes a safety zone 

from September 15, 2023, until 

September 22, 2023. The safety zone 

will cover all navigable waters from the 

surface to the sea floor in and around 

the Pacific Ocean at the East end of 

Santa Catalina Island from the vessel’s 

location at 33°18.923′ N, 118°21.985′ W 

and extending out along a 300-yard 

radius from that point. These 

coordinates are based on North 

American Datum of 1983. No vessel or 

person will be permitted to enter the 

safety zone without obtaining 

permission from the COTP or his 

designated representative. Sector Los 

Angeles-Long Beach may be contacted 

on VHF–FM Channel 16 or (310) 521– 

3801. The marine public will be notified 

of the safety zone via Broadcast Notice 

to Mariners. 

V. Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

Executive orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes and 

Executive orders, and we discuss First 

Amendment rights of protestors. 

A. Regulatory Planning and Review 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 


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