[Federal Register Volume 77, Number 30 (Tuesday, February 14, 2012)]
[Rules and Regulations]
[Pages 8144-8148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3418]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SATS Nos. TX-061-FOR; TX-062-FOR; TX-063-FOR; Docket No. OSM-2011-
0007]


Texas Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving three amendments to the Texas regulatory program 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act). Texas at its own initiative submitted three separate 
amendments to its program: SATS Nos. TX-061-FOR, TX-062-FOR, and TX-
063-FOR. Texas proposed revisions in TX-061-FOR by

[[Page 8145]]

adding language that no longer requires an operation with only 
reclamation activities ongoing to renew their mining permit, to clarify 
the requirement to maintain public liability insurance for sites where 
the permit is not renewed because the only activities ongoing are 
reclamation, and to clarify midterm review times for sites where the 
permit is not renewed because the only ongoing activities are 
reclamation. Texas proposed revisions in TX-062-FOR by adding a new 
definition for ``Previously mined land,'' adding new language on the 
effects of previous mining violations from operations on previously 
mined lands in relation to permit application denials, and adding new 
language explaining performance standards for revegetation liability 
timeframes for coal mining and reclamation operations. Texas proposed 
revisions in TX-063-FOR by adding a new definition for ``Director;'' 
deleting old language, and adding new language clarifying the review 
periods for new permits, renewals, and significant revisions. Texas 
revised its program to improve operational efficiency.

DATES: Effective Date: February 14, 2012.

FOR FURTHER INFORMATION CONTACT: Alfred L. Clayborne, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. Email: <a href="/cdn-cgi/l/email-protection#e382808f829a818c918d86a38c908e9186cd848c95"><span class="__cf_email__" data-cfemail="b5d4d6d9d4ccd7dac7dbd0f5dac6d8c7d09bd2dac3">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Texas Program

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

II. Submission of the Amendment

    By letter dated May 18, 2011, (Administrative Record No. TX-667) 
Texas sent us an amendment to its Program under SMCRA (30 U.S.C. 1201 
et seq.) at its own initiative. This amendment added language to no 
longer require an operation with only reclamation activities ongoing to 
renew their mining permit, to clarify the requirement to maintain 
public liability insurance for sites where the permit is not renewed 
because the only activities ongoing are reclamation, and to clarify 
midterm review times for sites where the permit is not renewed because 
the only ongoing activities are reclamation.
    By letter dated May 26, 2011, (Administrative Record No. TX-668) 
Texas sent us an amendment to its Program under SMCRA (30 U.S.C. 1201 
et seq.) at its own initiative. This amendment added a new definition 
for ``Previously mined land,'' added new language on the effects of 
previous mining violations from operations on previously mined lands in 
relation to permit application denials, and added new language 
explaining performance standards for revegetation liability timeframes 
for coal mining and reclamation operations.
    By letter dated June 3, 2011, (Administrative Record No. TX-669) 
Texas sent us an amendment to its Program under SMCRA (30 U.S.C. 1201 
et seq.) at its own initiative. This amendment added a new definition 
for ``Director;'' deleted old language, and added new language 
clarifying the review periods for new permits, renewals, and 
significant revisions.
    Texas revised its program with these three amendments to improve 
operational efficiency.
    We announced receipt of the proposed amendments in the August 16, 
2011, Federal Register (75 FR 50708). 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 amendments. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on September 15, 2011. We did not receive any 
public comments.

III. OSM's Findings

    We are approving the amendments as described below. The following 
are the findings we made concerning the amendments under SMCRA and the 
Federal regulations at 30 CFR 732.15 and 732.17. The full text of the 
changes made can be found in the administrative record or online at 
Regulations.gov.

A. TX-061-FOR

1. 16 Texas Administrative Code Section 12.100. Responsibilities
    Texas added new language allowing a permittee to not renew their 
mining permit if the activities on the site are solely for reclamation 
purposes.
    We find that Texas' new language is substantively the same as the 
language of the counterpart Federal regulations at 30 CFR 773.4(a) and 
will not make Texas' regulations less effective than the Federal 
counterpart. Therefore, we are approving it.
2. 16 Texas Administrative Code Section 12.225. Commission Review of 
Outstanding Permits
    Texas added a new paragraph (a)(3) to clarify that midterm permit 
reviews will continue to be conducted when an existing permit is not 
renewed because the only ongoing activities within the permit area are 
for reclamation.
    We find that this new paragraph is comparable to its Federal 
counterpart at 30 CFR 774.10(a)(2) and (3) and its addition does not 
make Texas' regulations less effective than the Federal regulation. 
Therefore, we are approving it.
3. 16 Texas Administrative Code Section 12.311. Terms and Conditions 
for Liability Insurance
    Texas revised this section with minor language changes to paragraph 
(b).
    We find that Texas' changes make this paragraph substantively the 
same as the counterpart Federal regulation 30 CFR 800.60(b). Therefore, 
we are approving them.

B. TX-062-FOR

1. Texas Surface Coal Mining and Reclamation Act Section 134.004. 
Definitions
    Texas added a new definition for ``previously mined land'' in lieu 
of the definition of ``lands eligible for remining'' contained in SMCRA 
at Sec.  701(34).
    We find that Texas' new definition coincides with definitions found 
in the Federal regulations dealing with remining and is a suitable 
counterpart to the definition contained in SMCRA because it addresses 
all aspects of the SMCRA definition. Therefore, the addition of this 
new definition will make Texas' statutes no less stringent than SMCRA 
and we are approving it.

[[Page 8146]]

2. Texas Surface Coal Mining and Reclamation Act Section 134.069. 
Effect of Past or Present Violation
    Texas added a new paragraph (c) to incorporate equivalent statutory 
language found at SMCRA Sec.  510(e) with regard to the criteria for 
denial of a permit application due to permit violations during mining 
on previously mined land. Although Texas' language is not identical to 
the Federal language, it is similar. SMCRA Sec.  510(e) is specific 
that the unanticipated event or condition is ``at'' a surface coal mine 
while Texas' Sec.  134.069 uses the phrase ``in connection with.''
    We find that this difference in wording is allowable as long as 
Texas implements it with the same intent of SMCRA Sec.  510(e) and the 
Federal regulations at 30 CFR 773.13. Based on this, we find that the 
addition of the new paragraph will make Texas' statutes no less 
stringent than the requirements of SMCRA. Therefore, we are approving 
it.
3. Texas Surface Coal Mining and Reclamation Act Section 134.092. 
Performance Standards
    Texas added new language to (a)(20) to incorporate equivalent 
statutory language found at SMCRA Sec.  515(b)(20) with regard to the 
term of the extended responsibility period for mining of previously 
mined lands.
    This new language creates a separate paragraph, (a)(20)(B), for 
lands that meet the new definition of ``previously mined lands'' which 
we have already found to be no less stringent than SMCRA. Texas' new 
provision requiring an operator to assume responsibility for 2 years on 
previously mined land is substantively the same as the Federal 
requirements at 515(b)(20)(B). However, this section does not address 
the period of responsibility for areas that receive an annual 
precipitation amount of 26 inches or less. This responsibility 
requirement is addressed in section 134.104 and is discussed below.
    We find that this new language makes Texas' statutes no less 
stringent than the requirements of SMCRA. Therefore, we are approving 
it.
4. Texas Surface Coal Mining and Reclamation Act Section 134.104. 
Responsibility for Revegetation: Area of Low Precipitation
    Texas added new language to this section to incorporate equivalent 
statutory language found at SMCRA Sec.  515(b)(20) with regard to the 
term of the extended responsibility period for mining of previously 
mined lands. The new language clarifies the liability periods for areas 
that receive an annual average precipitation amount of 26 inches or 
less as five years on previously mined lands and 10 years on lands not 
previously mined.
    We find that this new language makes Texas' statutes no less 
stringent than the requirements of SMCRA. Therefore, we are approving 
it.
5. Texas Surface Coal Mining and Reclamation Act Section 134.105. 
Responsibility for Revegetation: Long-Term Intensive Agricultural 
Postmining Use
    Texas deleted language in this section referring to the ``five year 
or 10 year'' period of responsibility. This deletion was made so the 
section coincides with other changes made to the statutes that were 
discussed above. This change allows the modified sentence to refer to 
whichever ``applicable period'' applies.
    We find that this deletion makes Texas' statutes no less stringent 
than the requirements of SMCRA. Therefore, we are approving it.

C. TX-063-FOR

1. Texas Surface Coal Mining and Reclamation Act Section 134.004. 
Definitions
    Texas added a definition for ``Director,'' defining it as the 
director of the Surface Mining and Reclamation Division of the Railroad 
Commission of Texas or the director's representative.
    We find that there is no Federal counterpart for the new definition 
and it does not make Texas' statutes less stringent than the 
requirements of SMCRA. However, Texas' current regulations at Sec.  
12.3(54) currently define ``director'' as ``the Director of the Office 
of Surface Mining Reclamation and Enforcement (OSM).'' Once we approve 
this change to Texas' statute, Texas will amend its approved program 
regulations. We are approving this change to Texas' statutes.
2. Texas Surface Coal Mining and Reclamation Act Section 134.080. 
Approval of Permit Revision
    Texas modified the section's title and deleted paragraph (b), which 
required the Commission to approve or disapprove a permit revision 
within 90 days. Texas added a new section 134.085 that describes, in 
detail, the Commission's requirements for processing new permits, 
renewals, and revisions, including processing and notification 
timeframes. SMCRA Sec.  511(a)(2) requires that revisions be approved 
or disapproved ``within a period of time established by the State or 
Federal Program.''
    We find that these changes make Texas' statutes no less stringent 
than the requirements of SMCRA. Therefore, we are approving them.
3. Texas Surface Coal Mining and Reclamation Act Section 134.085. 
Review Periods for New Permits, Renewals, and Revisions
    Texas added this new section to codify application processing 
timeframes that have previously been in effect and to comply with SMCRA 
Sec.  511(a)(2) which requires States to establish such timeframes. 
Texas established a seven day application review period to determine 
application completeness followed by a 120 day review period for new 
permits, renewals, or significant revisions and a 90 day review period 
for applications considered to be non-significant departures.
    We find that the addition of this new section makes Texas' statutes 
no less stringent than the requirements of SMCRA. Therefore, we are 
approving it.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendments, but did not receive 
any.

Federal Agency Comments

    On June 27, 2011, under 30 CFR 732.17(h)(11)(i) and section 503(b) 
of SMCRA, we requested comments on the amendments from various Federal 
agencies with an actual or potential interest in the Texas program 
(Administrative Record Nos. TX-667.02, TX-668.02, and TX-669.02). We 
did not receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendments 
that relate to air or water quality standards issued under the 
authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean 
Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Texas 
proposed to make in these amendments pertained to air or water quality 
standards. Therefore, we did not ask EPA to concur on the amendments. 
However, on June 27, 2011, under 30 CFR 732.17(h)(11)(i), we requested 
comments on the amendments from the EPA (Administrative Record Nos. TX-
667.02, TX-668.02, and TX-669.02). The EPA did not respond to our 
request.

[[Page 8147]]

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On June 27, 2011, we requested comments on Texas' 
amendments (Administrative Record Nos. TX-667.02, TX-668.02, and TX-
669.02), but neither responded to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendments Texas sent 
us on May 18, 2011, May 26, 2011, and June 3, 2011.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 943, which codify decisions concerning the Texas 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this rule effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 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 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

[[Page 8148]]

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: November 9, 2011.
Ervin J. Barchenger,
Regional Director, Mid-Continent Region.
    For the reasons set out in the preamble, 30 CFR part 943 is amended 
as set forth below:

PART 943--TEXAS

0
1. The authority citation for Part 943 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
2. Section 943.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  943.15  Approval of Texas regulatory program amendments.

* * * * *

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   Original amendment  submission date     Date of final publication              Citation/Description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
May 18, 2011, May 26, 2011, and June 3,   February 14, 2012..........  16 TAC 12.100(a); 12.225(a)(3);
 2011.                                                                  12.311(b); TSCMRA 134.004 (7-a) and (15-
                                                                        a); 134.069(c); 134.080(a) and (b);
                                                                        134.085; 134.092(20); 134.104(1) and
                                                                        (2); and 134.105(a).
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[FR Doc. 2012-3418 Filed 2-13-12; 8:45 am]
BILLING CODE 4310-05-P


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