[Federal Register Volume 72, Number 82 (Monday, April 30, 2007)]
[Proposed Rules]
[Pages 21185-21189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8156]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[Docket No. TX-057-FOR]


Texas Regulatory Program and Abandoned Mine Land Reclamation Plan

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing receipt of a proposed amendment to the Texas 
regulatory program (Texas program) and the Texas abandoned mine land 
plan (Texas plan) under the Surface Mining

[[Page 21186]]

Control and Reclamation Act of 1977 (SMCRA or the Act). Texas proposes 
revisions to its regulations regarding postmining land uses; terms and 
conditions of the bond; topsoil redistribution; standards for 
revegetation success; public hearings; review of notice of violation or 
cessation order; determination of amount of penalty; assessment of 
separate violation for each day; request for hearing; and liens. Texas 
also proposes revisions to its statute regarding liens and 
administrative penalties for violation of permit conditions. Texas 
intends to revise its program to be consistent with the corresponding 
Federal regulations and/or SMCRA, to clarify ambiguities, and to 
improve operational efficiency.
    This document gives the times and locations that the Texas program 
and Texas plan and the proposed amendment are available for your 
inspection, the period during which you may submit written comments on 
the amendment, and the procedures that we will follow for the public 
hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
c.t. May 30, 2007. If requested, we will hold a public hearing on the 
amendment on May 25, 2007. We will accept requests to speak at a 
hearing until 4 p.m., c.t. on May 15, 2007.

ADDRESSES: You may submit comments, identified by Docket No. TX-057-
FOR, by any of the following methods:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#503124383f3d3123103f233d22357e373f26"><span class="__cf_email__" data-cfemail="7a1b0e1215171b093a150917081f541d150c">[email protected]</span></a>. Include ``Docket No. TX-057-
FOR'' in the subject line of the message.
    <bullet> Mail/Hand Delivery: A. Dwight Thomas, Acting Director, 
Tulsa Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1645 South 101st East Avenue, Suite 145, Tulsa, Oklahoma 
74128
    <bullet> Fax: (918) 581-6419
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the Texas 
program and Texas plan, this amendment, a listing of any scheduled 
public hearings, and all written comments received in response to this 
document, you must go to the address listed below during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the amendment by contacting OSM's Tulsa Field 
Office.
    A. Dwight Thomas, Acting Director, Tulsa Field Office, Office of 
Surface Mining Reclamation and Enforcement, 1645 South 101st East 
Avenue, Suite 145, Tulsa, Oklahoma 74128, Telephone: (918) 581-6430, E-
mail: <a href="/cdn-cgi/l/email-protection#e382978b8c8e8290a38c908e9186cd848c95"><span class="__cf_email__" data-cfemail="0d6c796562606c7e4d627e607f68236a627b">[email protected]</span></a>.
    In addition, you may review a copy of the amendment during regular 
business hours at the following location:
    Surface Mining and Reclamation Division, Railroad Commission of 
Texas, 1701 North Congress Avenue, Austin, Texas 78711-2967, Telephone: 
(512) 463-6900.

FOR FURTHER INFORMATION CONTACT: A. Dwight Thomas, Acting Director, 
Tulsa Field Office. Telephone: (918) 581-6430. E-mail: 
<a href="/cdn-cgi/l/email-protection#5332273b3c3e3220133c203e21367d343c25"><span class="__cf_email__" data-cfemail="87e6f3efe8eae6f4c7e8f4eaf5e2a9e0e8f1">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program and Texas Plan
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Texas Program and Texas Plan

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``a State law which provides 
for the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of this Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior (Secretary) 
conditionally approved the Texas program effective February 16, 1980. 
You can find background information on the Texas program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval of the Texas program in the February 27, 1980, Federal 
Register (45 FR 12998). You can also find later actions concerning the 
Texas program and program amendments at 30 CFR 943.10, 943.15 and 
943.16.
    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. Description of the Proposed Amendment

    By letter dated February 14, 2007 (Administrative Record No. TX-
662), and at its own initiative, Texas sent us an amendment to its 
program under SMCRA (30 U.S.C. 1201 et seq.). Below is a summary of the 
changes proposed by Texas. The full text of the program amendment is 
available for you to read at the locations listed above under 
ADDRESSES.

A. Revisions to Texas' Regulations, Title 16 Texas Administrative Code 
(TAC)

1. Section 12.147 Reclamation Plan: Postmining Land Uses
    Texas proposes to delete paragraph (a)(2) that requires permit 
applicants to submit a detailed management plan if the postmining land 
use is to be range or grazing. Texas also proposes to redesignate 
paragraphs (a)(3) and (a)(4) as paragraphs (a)(2) and (a)(3).
2. Section 12.309 Terms and Conditions of the Bond
    Texas proposes to add to paragraph (g)(2) a requirement that a 
letter of credit used as security in areas requiring continuous bond 
coverage must be forfeited and collected by the Railroad Commission of 
Texas if it is not replaced by other suitable bond or letter of credit 
at least 30 days before it expires.
3. Section 12.337 Topsoil: Redistribution
    Texas proposes to revise subsections (a) and (b) to read as 
follows:

    (a) After final grading and before the replacement of topsoil, 
topsoil substitutes

[[Page 21187]]

and other materials segregated in accordance with Sec.  12.335 of 
this title (relating to Topsoil: Removal), regraded land shall be 
scarified or otherwise treated as required by the Commission to 
eliminate slippage surfaces and to promote root penetration. If the 
person who conducts the surface mining activities shows, through 
appropriate tests, and the Commission approves, that no harm will be 
caused to the topsoil and vegetation, scarification may be conducted 
after topsoiling.
    (b) Topsoil material, and topsoil substitutes and other 
supplements shall be redistributed in a manner that:
    (1) Achieves an approximate uniform, stable thickness consistent 
with the approved postmining land uses, contours, and surface water 
drainage system. Soil thickness may also be varied to the extent 
such variations help meet the specific revegetation goals identified 
in the permit;
    (2) Prevents excess compaction of the topsoil, topsoil 
substitutes and supplements; and
    (3) Protects the topsoil, topsoil substitutes and supplements 
from wind and water erosion before and after it is seeded and 
planted.
4. Section 12.395 Revegetation: Standards for Success
    a. Texas proposes to revise paragraph (a)(1) to require standards 
for success and statistically valid sampling techniques for measuring 
success to be described in writing and made available to the public.
    b. Texas proposes to revise paragraph (b)(1) to read as follows:

    (1) For areas developed as grazingland or pastureland, the 
ground cover and production of living plants on the revegetated area 
shall be at least equal to that of a reference area or such other 
success standards approved by the Commission;

    c. Paragraph (b)(3) lists the kinds of areas whose success of 
vegetation is to be determined on the basis of tree and shrub stocking 
and vegetative ground cover. Texas proposes to revise this paragraph by 
adding ``undeveloped land'' as an area requiring this determination and 
by removing ``shelter belts.''
    d. For areas to be developed for fish and wildlife habitat, 
recreation, undeveloped land, or forest products, Texas proposes to 
revise paragraph (b)(3)(A) to allow consultation with and approval by 
the State agencies responsible for the administration of forestry and 
wildlife programs to occur on either a program-wide or permit-specific 
basis.
    e. Texas proposes to revise paragraph (b)(3)(B) by adding 
instructions explaining how to meet the requirements for determining 
the success of stocking and the adequacy of the planting arrangement 
for trees and shrubs.
    f. Texas proposes to revise paragraph (c)(3) to read as follows:

    (3) In areas of 26.0 inches or less average annual 
precipitation, the period of responsibility shall continue for a 
period of not less than 10 full years. Vegetation parameters 
identified in Sec.  12.395(b) of this title (relating to 
Revegetation: Standards for Success) for grazingland, pastureland, 
or cropland shall equal or exceed the approved success standard 
during the growing season of any two years after year six of the 
responsibility period. Areas approved for the other uses identified 
in Sec.  12.395(b) of this title (relating to Revegetation: 
Standards for Success) shall equal or exceed the applicable success 
standard during the growing season of the last year of the 
responsibility period.

    g. Texas proposes to revise paragraph (c)(4) by clarifying that 
selective husbandry practices may be approved if the discontinuance of 
the practice ``after the liability period expires'' will not reduce the 
probability of permanent revegetation success. Texas also proposes to 
clarify that the unmined land, for which the selective husbandry 
practices are normal, must be land that has a land use similar to that 
of the approved postmining land use of the disturbed land.
5. Section 12.681 Public Hearing
    a. Texas proposes to revise the title of this section to read 
``Informal Public Hearing.''
    b. Texas proposes to revise subsection (a) so that a notice of 
violation or cessation order which requires cessation of mining will 
expire within 30 days after it is served unless an informal public 
hearing has been held within that time. Texas also proposes to clarify 
that the expiration of the notice or order will not affect the 
Commission's right to assess civil penalties with respect to the period 
during which the notice or order was in effect. In addition, Texas 
proposes that no hearing will be required where the condition, 
practice, or violation has been abated or the hearing has been waived. 
Furthermore, Texas proposes to clarify, for the purpose of this 
section, what is included in ``mining.''
    c. Texas proposes to revise subsection (b) to clarify that a notice 
of violation or cessation order will not expire as provided in 
subsection (a) if the informal public hearing has been waived or if, 
with the consent of the person to whom the notice or order was issued, 
the informal public hearing is held later than 30 days after the notice 
or order is served. Texas also proposes to set forth the conditions 
under which the informal public hearing is deemed to be waived.
    d. Texas proposes to revise subsections (c), (e), (f), and (g) to 
change the name of the ``public hearing'' to ``informal public 
hearing.'' Also, Texas proposes to revise subsection (g) to clarify 
that the ``review'' mentioned in this subsection is a ``formal 
review.''
    e. Texas proposes to add new subsection (h) to read as follows:

    (h) The person conducting the informal hearing for the 
Commission shall determine whether or not the mine site should be 
viewed during the hearing. In making this determination the only 
consideration shall be whether a view of the mine site will assist 
the persons conducting the hearing in reviewing the appropriateness 
of the enforcement action or of the required remedial action.

6. Section 12.682 Review of Notice of Violation or Cessation Order
    a. Texas proposes to revise the title of this section to read, 
``Formal Review of Notice of Violation or Cessation Order.''
    b. Texas proposes to revise subsection (a) and to add new 
subsection (b) to read as follows:

    (a) A person issued a notice of violation or cessation order 
under Sec.  12.677 or Sec.  12.678 of this title, or a person having 
an interest which may be adversely affected by the issuance, 
modification, vacation or termination of a notice or order, may 
request review of that action by filing an application for review 
and request for a hearing pursuant to the requisites of Sec. Sec.  
134.168-134.172 of the Act and the APA, within 30 days after 
receiving notice of the action.
    (b) The filing of an application for review and request for a 
hearing under this section shall not operate as a stay of any notice 
or order, or any modification, termination or vacation, of either.

7. Section 12.688 Determination of Amount of Penalty
    Texas' penalty schedule currently begins with a minimum penalty of 
$20 and increases to a maximum penalty of $5,000. Texas proposes to 
change the penalty schedule so that it starts with a minimum penalty of 
$550 and increases to a maximum penalty of $13,000. Texas proposes to 
increase the penalties to reflect the decreased value in the dollar 
since the penalty schedule was promulgated in 1979.
8. Section 12.689 Assessment of Separate Violation for Each Day
    Texas proposes to revise subsection (b) to increase the per day 
civil penalty from $750 to $1,025 and to make additions and/or 
corrections regarding regulatory and statutory citations. Texas also 
proposes to add new paragraph (b)(3) to clarify that the daily penalty 
will not be assessed for more than 30 days and that if the permittee 
has not abated the violation within the 30-day period, it will take 
appropriate action to

[[Page 21188]]

ensure that abatement occurs or that there will not be a reoccurrence 
of the failure to abate.
9. Section 12.693 Request for Hearing
    Texas proposes to revise this section to read as follows:

    The person charged with the violation may contest the proposed 
penalty or the fact of the violation by submitting a petition and an 
amount equal to the proposed penalty or, if an assessment conference 
has been held, the reassessed or affirmed penalty to the Commission, 
to be held in escrow, within 30 days from receipt of the proposed 
assessment or reassessment or 30 days from the date of service of 
the assessment conference examiner's action, whichever is later. The 
fact of the violation may not be contested if it has been decided in 
a review proceeding commenced under Sec.  12.682 of this title.

10. Section 12.816 Liens
    Texas proposes to revise subsection (c) to remove the requirement 
that the landowner must own the surface before May 2, 1977, before he 
or she is exempt from having a lien placed against his or her property 
because reclamation resulted in a significant increase in the fair 
market value of the property.

B. Revisions to Texas' Statute, Chapter 134 Texas Natural Resources 
Code

1. Section 134.150 Lien
    Texas proposes to revise subsection (c) to read as follows:

    (c) A lien may not be filed under this section against the 
property of a person who did not consent to, participate in, or 
exercise control over the mining operation that necessitated the 
reclamation performed under this chapter.

2. Section 134.174 Administrative Penalty for Violation of Permit 
Condition of This Chapter
    Texas proposes to revise subsection (b) to read as follows:

    (b) The penalty may not exceed $13,000 for each violation. Each 
day a violation continues may be considered a separate violation for 
purposes of penalty assessments.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We will not consider or respond to 
your comments when developing the final rule if they are received after 
the close of the comment period (see DATES). We will make every attempt 
to log all comments into the administrative record, but comments 
delivered to an address other than the Tulsa Field Office may not be 
logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file, avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: Docket No. TX-057-FOR'' and your name and return 
address in your Internet message. If you do not receive a confirmation 
that we have received your Internet message, contact the Tulsa Field 
Office at (918) 581-6430.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., c.t. on May 15, 
2007. If you are disabled and need special accommodations to attend a 
public hearing, contact the person listed under FOR FURTHER INFORMATION 
CONTACT. We will arrange the location and time of the hearing with 
those persons requesting the hearing. If no one requests an opportunity 
to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. 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 regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws

[[Page 21189]]

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 regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 943

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 23, 2007.
Ervin J. Barchenger,
Acting Regional Director, Mid-Continent Region.
[FR Doc. E7-8156 Filed 4-27-07; 8:45 am]
BILLING CODE 4310-05-P


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