Federal Register / Vol. 72, No. 222 / Monday, November 19, 2007 / Rules and Regulations 64939 

applicant fails to meet his or her burden 

of proof under 22 CFR 51.23(a) and 

51.40 or otherwise does not provide 

documentation sufficient to establish 

entitlement to passport issuance within 

ninety days of notification by the 

Department that additional information 

from the applicant is required. 

Thereafter, if an applicant wishes to 

pursue a claim of entitlement to 

passport issuance, he or she must 

submit a new application and 

supporting documents, photographs, 

and statements in support of the 

application, along with applicable 

application and execution fees. 

§ 51.66 Surrender of passport. 

The bearer of a passport that is 

revoked must surrender it to the 

Department or its authorized 

representative upon demand. 

Subpart F—Procedures for Review of 

Certain Denials and Revocations 

§ 51.70 Request for hearing to review 

certain denials and revocations. 

(a) A person whose passport has been 

denied or revoked under 22 CFR 

51.60(b)(1) through (10), 51.60(c), 

51.60(d), 51.61(b), 51.62(a)(1) where the 

basis for the adverse action would 

entitle the applicant to a hearing under 

this section, or § 51.62(a)(2) may request 

a hearing to the Department to review 

the basis for the denial or revocation 

within 60 days of receipt of the notice 

of the denial or revocation. 

(b) The provisions of §§ 51.70 through 

51.74 do not apply to any action of the 

Department taken on an individual basis 

in denying, restricting, revoking, or 

invalidating a passport or in any other 

way adversely affecting the ability of a 

person to receive or use a passport for 

reasons excluded from § 51.70(a) 

including: 

(1) Non-nationality; 

(2) Refusal under the provisions of 

51.60(a); 

(3) Refusal to grant a discretionary 

exception under emergency or 

humanitarian relief provisions of 

§ 51.61(c); 

(4) Refusal to grant a discretionary 

exception from geographical limitations 

of general applicability. 

(c) If a timely request for a hearing is 

made, the Department will hold it 

within 60 days of the date the 

Department receives the request, unless 

the person requesting the hearing asks 

for a later date and the Department and 

the hearing officer agree. 

(d) The Department will give the 

person requesting the hearing not less 

than 10 business days’ written notice of 

the date and place of the hearing. 

§ 51.71 The hearing. 

(a) The Department will name a 

hearing officer, who will make findings 

of fact and submit recommendations 

based on the record of the hearing as 

defined in § 51.72 to the Deputy 

Assistant Secretary for Passport Services 

in the Bureau of Consular Affairs. 

(b) The person requesting the hearing 

may appear in person, or with or by his 

designated attorney. The attorney must 

be admitted to practice in any state of 

the United States, the District of 

Columbia, any territory or possession of 

the United States, or be admitted to 

practice before the courts of the country 

in which the hearing is to be held. 

(c) The person requesting the hearing 

may testify, offer evidence in his or her 

own behalf, present witnesses, and 

make arguments at the hearing. The 

person requesting the hearing is 

responsible for all costs associated with 

the presentation of his or her case. The 

Department may present witnesses, offer 

evidence, and make arguments in its 

behalf. The Department is responsible 

for all costs associated with the 

presentation of its case. 

(d) Formal rules of evidence will not 

apply, but the hearing officer may 

impose reasonable restrictions on 

relevancy, materiality, and competency 

of evidence presented. Testimony will 

be under oath or by affirmation under 

penalty of perjury. The hearing officer 

may not consider any information that 

is not also made available to the person 

requesting the hearing and made a part 

of the record of the proceeding. 

(e) If any witness is unable to appear 

in person, the hearing officer may, in his 

or her discretion, accept an affidavit 

from or order a deposition of the 

witness, the cost for which will be the 

responsibility of the requesting party. 

§ 51.72 Transcript and record of the 

hearing. 

A qualified reporter will make a 

complete verbatim transcript of the 

hearing. The person requesting the 

hearing and/or his or her attorney may 

review and purchase a copy of the 

transcript. The hearing transcript and 

the documents received by the hearing 

officer will constitute the record of the 

hearing. 

§ 51.73 Privacy of hearing. 

Only the person requesting the 

hearing, his or her attorney, the hearing 

officer, official reporters, and employees 

of the Department directly concerned 

with the presentation of the case for the 

Department may be present at the 

hearing. Witnesses may be present only 

while actually giving testimony or as 

otherwise directed by the hearing 

officer. 

§ 51.74 Final decision. 

After reviewing the record of the 

hearing and the findings of fact and 

recommendations of the hearing officer, 

the Deputy Assistant Secretary for 

Passport Services will decide whether to 

uphold the denial or revocation of the 

passport. The Department will promptly 

notify the person requesting the hearing 

in writing of the decision. If the 

decision is to uphold the denial or 

revocation, the notice will contain the 

reason(s) for the decision. The decision 

is final and is not subject to further 

administrative review. 

Dated: November 8, 2007. 

Janice L. Jacobs, 

Principal Deputy Assistant Secretary, 

Consular Affairs, Department of State. 

[FR Doc. E7–22461 Filed 11–16–07; 8:45 am] 

BILLING CODE 4710–06–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 31 

[TD 9367] 

RIN 1545—BH00 

Payments Made by Reason of a Salary 

Reduction Agreement 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Final regulation. 

SUMMARY: This document promulgates a 

final regulation that defines the term 

salary reduction agreement for purposes 

of section 3121(a)(5)(D) of the Internal 

Revenue Code (Code). The final 

regulation provides guidance to 

employers (public educational 

institutions and section 501(c)(3) 

organizations) purchasing annuity 

contracts described in section 403(b) on 

behalf of their employees. 

DATES: Effective Date: This regulation is 

effective November 15, 2007. 

Applicability Date: This regulation 

applies to contributions to section 

403(b) plans made on or after November 

15, 2007. 

FOR FURTHER INFORMATION CONTACT: Neil 

D. Shepherd, (202) 622–6040 (not a tollfree number). 

SUPPLEMENTARY INFORMATION: 

Background 

This final regulation amends the 

Employment Tax Regulations (26 CFR 

part 31) by providing guidance relating 


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64940 Federal Register / Vol. 72, No. 222 / Monday, November 19, 2007 / Rules and Regulations 

to section 3121(a)(5)(D). The Federal 

Insurance Contributions Act (FICA) 

imposes taxes on employees and 

employers equal to a percentage of the 

wages received with respect to 

employment. Section 3121(a) defines 

wages for FICA tax purposes as all 

remuneration for employment unless 

otherwise excepted. Section 

3121(a)(5)(D), added by the Social 

Security Amendments of 1983 (Public 

Law 98–21 (97 Stat. 65)), generally 

excepts from wages payments made by 

an employer for the purchase of an 

annuity contract described in section 

403(b). However section 3121(a)(5)(D) 

expressly excludes from the exception 

payments made by reason of a salary 

reduction agreement (whether 

evidenced by a written instrument or 

otherwise). Thus, payments made under 

a salary reduction agreement to 

purchase a section 403(b) annuity 

contract are included in wages for FICA 

purposes. A temporary and proposed 

regulation defining the term ‘‘salary 

reduction agreement’’ for purposes of 

section 3121(a)(5)(D) was published in 

the Federal Register (69 FR 67054) on 

November 16, 2004. 

For income tax purposes, 

contributions made by an employer to a 

section 403(b) contract, including 

contributions made pursuant to a cash 

or deferred election or other salary 

reduction agreement, are generally 

excluded from income. § 403(b); see also 

section 1450(a) of the Small Business 

Job Protection Act of 1996 (Pub. L. 104–

188 (110 Stat. 1755)). Conversely, for 

FICA tax purposes, contributions made 

by an employer to a section 403(b) 

contract pursuant to a cash or deferred 

election or other salary reduction 

agreement are included in wages. 

§ 3121(a)(5)(D); see also S. Rep. No. 98–

23, at 40–41, 98th Cong., 1st Sess. 

(1983). 

Summary of Comments and 

Explanation of Provisions 

This regulation finalizes the 

temporary and proposed regulation 

without change. The final regulation 

provides that the term ‘‘salary reduction 

agreement’’ includes (1) a plan or 

arrangement whereby a payment will be 

made if the employee elects to reduce 

his or her compensation pursuant to a 

cash or deferred election as defined at 

§ 1.401(k)–1(a)(3) of the Income Tax 

Regulations, (2) a plan or arrangement 

whereby a payment will be made if the 

employee elects to reduce his or her 

compensation pursuant to a one-time 

irrevocable election made at or before 

the time of initial eligibility to 

participate in such plan or arrangement 

(or pursuant to a similar arrangement 

involving a one-time irrevocable 

election), and (3) a plan or arrangement 

whereby a payment will be made if the 

employee agrees as a condition of 

employment (whether such condition is 

set by statute, contract, or otherwise) to 

make a contribution that reduces the 

employee’s compensation. 

Comments were submitted with 

respect to the definition of the term 

‘‘salary reduction agreement’’ for 

purposes of section 3121(a)(5)(D) and 

with respect to the applicability date of 

the temporary and proposed regulation. 

Salary Reduction Agreement 

Commentators asserted that Congress 

intended the term ‘‘salary reduction 

agreement’’ in section 3121(a)(5)(D) to 

apply only to voluntary reductions in 

salary and not to salary reductions 

required as a condition of employment. 

In support of this view, commentators 

cited the legislative history underlying 

section 3121(a)(5)(D), particularly the 

following language from the Senate 

Report: 

The bill also provides that any amounts 

paid by an employer to a tax-sheltered 

annuity by reason of a salary reduction 

agreement between the employer and the 

employee would be includible in the 

employee’s social security wage base. The 

committee intended that the provision would 

merely codify the holding of Revenue Ruling 

65–208, 1965–2 Cum. Bull. 383, without any 

implication with respect to the issue of 

whether a particular amount paid by an 

employer to a tax-sheltered annuity is, in 

fact, made by reason of a ‘‘salary reduction 

agreement.’’

S. Rep. No. 98–23, at 40–41, 98th Cong., 

1st Sess. (1983). 

Commentators maintained that 

Revenue Ruling 65–208 distinguishes 

between voluntary and mandatory 

salary reduction contributions and that 

the legislative history reflects Congress’

intent to treat only voluntary salary 

reduction contributions as having been 

made by reason of a salary reduction 

agreement. While the Senate Report 

indicates a Congressional intent to 

‘‘codify the holding of Revenue Ruling 

65–208,’’ the revenue ruling does not 

address any distinction between 

voluntary and mandatory reductions in 

salary. The critical distinction drawn in 

Revenue Ruling 65–208 is between 

situations ‘‘where an organization uses 

its own funds for the purchase of an 

annuity contract’’ (a supplemental 

contribution) and situations ‘‘where the 

employee takes a voluntary reduction in 

salary to provide the necessary funds’’

(a salary reduction contribution). At the 

time Revenue Ruling 65–208 was issued 

the statutory standard under section 

3121(a)(2) for determining whether to 

include contributions to section 403(b) 

annuity contracts in wages for FICA 

purposes was whether the contributions 

had been paid by the employer or by the 

employee. Thus, in determining 

whether the employer or the employee 

has paid the contribution, the revenue 

ruling distinguishes between 

supplemental contributions funded by 

the employer and salary reduction 

contributions funded by the employee. 

Whether a salary reduction contribution 

was voluntary or mandatory is 

irrelevant in establishing that the 

employee funded the contribution 

through a reduction in salary. 

Several courts have discussed 

Revenue Ruling 65–208 and confirmed 

that it addresses the distinction between 

salary supplements and salary 

reductions. See Temple University v. 

United States, 769 F.2d 126, 130 (3d Cir. 

1985), discussing the distinction drawn 

by Revenue Ruling 65–208 between 

supplemental contributions and salary 

reduction contributions, and Canisius 

College v. United States, 799 F.2d 18, 

20–21 (2d Cir. 1986), distinguishing 

between ‘‘salary supplement plans’’ and 

‘‘salary reduction plans.’’ See also 

University of Chicago v. United States, 

No. 06 C 3452, 2007 U.S. Dist. LEXIS 

61632, at *8 (N.D. Ill. Aug. 21, 2007) 

concluding that ‘‘the distinction that 

was being drawn in [Revenue Ruling 

65–208] was between annuity purchase 

funds that come from employee 

contributions and those that come from 

employer contributions.’’ The Treasury 

Department and the Internal Revenue 

Service (IRS) continue to believe that it 

is consistent with the legislative history 

of section 3121(a)(5)(D) and with the 

codification of Revenue Ruling 65–208 

to treat both voluntary salary reductions 

and salary reductions to which the 

employee agrees as a condition of 

employment as payments made 

pursuant to a salary reduction 

agreement. 

Commentators suggested that the term 

‘‘salary reduction agreement’’ for 

purposes of section 3121(a)(5)(D) should 

mean an elective deferral within the 

meaning of section 402(g)(3)(C), which 

defines the term elective deferral for 

purposes of the section 402(g)(3) limit 

on the exclusion of elective deferrals 

from gross income. In their view, 

because salary reduction contributions 

made pursuant to a one–time 

irrevocable election or as a condition of 

employment are not elective deferrals 

under section 402(g)(3)(C) and its 

accompanying regulations, such 

contributions are not made pursuant to 

a salary reduction agreement and, 

consequently, are excluded from wages 

under section 3121(a)(5)(D). 


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Federal Register / Vol. 72, No. 222 / Monday, November 19, 2007 / Rules and Regulations 64941 

Section 402(g)(3)(C) provides that the 

term ‘‘elective deferral’’ includes ‘‘any 

employer contribution to purchase an 

annuity contract under section 403(b) 

under a salary reduction agreement 

(within the meaning of section 

3121(a)(5)(D)).’’ However, when 

enacting section 402(g)(3), Congress 

made the following statement about the 

relationship among mandatory salary 

reduction contributions, elective 

deferrals, and salary reduction 

agreements: ‘‘if an employee is required 

to contribute a fixed percentage of 

compensation to a tax–sheltered annuity 

as a condition of employment, the 

contributions are not treated as elective 

deferrals.’’ H.R. Rep. No. 99–841 at II–

405 (1986). Similarly, in 1988 Congress 

added the flush language of 402(g)(3) 

providing that a one-time irrevocable 

election will not be treated as an 

elective deferral. Congress added the 

flush language to clarify that the term 

‘‘elective deferral’’ excludes 

contributions ‘‘made pursuant to a onetime election to participate in the taxsheltered annuity even though such 

contribution would be considered made 

under a salary reduction agreement 

under section 3121(a)(5)(D).’’

S. Rep. No. 100–445, at 151, 100th 

Cong., 2d Sess. (1988). Congress 

explained the clarification to section 

402(g)(3) as follows: 

The bill conforms the statutory language to 

the legislative history by providing that 

contributions to a tax-sheltered annuity are 

not considered elective deferrals if the 

contributions are made pursuant to a onetime irrevocable election made by the 

employee at the time of initial eligibility to 

participate in the annuity or are made 

pursuant to a similar arrangement specified 

in regulations. The bill does not change the 

definition of salary reduction agreement for 

purpose of section 3121(a)(5)(D). 

Sen. Rep. 100–445, 100th Cong., 2d 

Sess. (1988) 151. 

Thus, as reflected in both the 

statutory language of section 402(g) and 

in its legislative history, Congress 

intended the definition of salary 

reduction agreement for purposes of 

section 3121(a)(5)(D) to be distinct from 

the definition of elective deferral for 

purposes of section 402(g)(3)(C). 

Furthermore, Congress intended that 

the term wages would have different 

meanings for income tax withholding 

and FICA tax purposes. The broader 

scope of the term for FICA tax purposes 

is consistent with the general policy 

underlying the FICA. See S. Rep. No. 

98–23, at 39, 98th Cong., 1st Sess. (1983) 

relating to the Social Security 

Amendments of 1983 (Pub. L. 98–21 (97 

Stat. 65)). Moreover, the legislative 

history to section 3121(a)(5)(D) cited in 

this preamble describes Congress’s 

intent to codify the holding in Revenue 

Ruling 65–208 (see 

§ 601.601(d)(2)(ii)(b)), which provides 

that certain amounts included in 

income and amounts included in wages 

with respect to contributions used to 

purchase a 403(b) annuity contract are 

not the same. Based on the statutory 

language and the legislative history of 

section 3121(a)(5)(D) and related 

provisions, including section 

3121(v)(1)(B) as discussed in this 

preamble, the Treasury Department and 

the IRS continue to believe that the term 

‘‘salary reduction agreement’’ in section 

3121(a)(5)(D) includes salary reduction 

contributions made pursuant to a onetime irrevocable election or as a 

condition of employment. 

The term ‘‘salary reduction 

agreement’’ is used not only in section 

3121(a)(5)(D) but also in another 

subsection of section 3121, specifically 

section 3121(v)(1)(B), which provides 

that wages include ‘‘any amount treated 

as an employer contribution under 

section 414(h)(2) where the pickup 

referred to in such section is pursuant 

to a salary reduction agreement 

(whether evidenced by a written 

instrument or otherwise).’’

Commentators contended that the term 

‘‘salary reduction agreement’’ should be 

interpreted differently for purposes of 

sections 3121(a)(5)(D) and 3121(v)(1)(B) 

because section 3121(v)(1)(B) applies 

only to salary reduction contributions 

made under a section 414(h) pick-up 

plan established by a State or local 

government employer. By definition, the 

salary reductions that fund these 

employer contributions are mandatory 

whereas contributions to section 403(b) 

annuity plans may be mandatory or 

voluntary. While it is correct that salary 

reductions in connection with section 

414(h) pick-up plans are mandatory, we 

see no evidence in the statute or 

legislative history that Congress 

intended to interpret the same language 

differently or to treat similarly situated 

employees differently for FICA 

purposes. Both section 3121(a)(5)(D) 

and section 3121(v)(1)(B) include salary 

reduction contributions in wages for 

FICA tax purposes. Neither the statute 

nor the legislative history gives a basis 

for concluding that mandatory salary 

reductions made in connection with a 

section 414(h) pick-up plan should be 

included in wages for FICA purposes 

while mandatory salary reductions 

made in connection with a section 

403(b) annuity plan should be excluded 

from wages. Thus, the Treasury 

Department and the IRS continue to 

believe that it is appropriate to give a 

consistent interpretation to identical 

language in two subsections of the same 

statutory section enacted only one year 

apart. 

Similarly, as discussed in the 

preamble to the temporary and 

proposed regulation, the Tenth Circuit’s 

decision in Public Employees’

Retirement Board v. Shalala, 153 F.3d 

1160 (10th Cir. 1998) supports the view 

that a mandatory salary reduction 

contribution nonetheless requires the 

employee’s agreement. In Public 

Employees’ Retirement Board the Court 

of Appeals held that the term ‘‘salary 

reduction agreement’’ includes 

mandatory salary reduction 

contributions made as a condition of 

employment. As the Court said, ‘‘[A]n 

employee’s decision to go to work or 

continue to work * * * constitutes 

conduct manifesting assent to a salary 

reduction.’’ 153 F.3d at 1166. The 

employment relationship itself is a 

voluntary relationship, and the 

employee manifests his or her 

agreement with the terms and 

conditions of the employment 

relationship by accepting employment. 

See University of Chicago v. United 

States, No. 06 C 3452, 2007 U.S. Dist. 

LEXIS 61632, at *7 (N.D. Ill. Aug. 21, 

2007) citing Public Employees’

Retirement Board for the proposition 

that ‘‘a salary reduction agreed to as a 

condition of employment constitutes a 

salary reduction agreement because ‘the 

employee has ‘‘agreed’’ to the salary 

reduction by continuing employment.’ ’’

The temporary and proposed 

regulations, and now the final 

regulations, read the term ‘‘agreement’’

for purposes of section 3121(a)(5)(D) as 

the Tenth Circuit read it for purposes of 

section 3121(v)(1)(B), as both an 

agreement to accept employment subject 

to a mandatory salary reduction and an 

agreement to a specified salary 

reduction. 

Accordingly, the final regulation 

adopts the definition of salary reduction 

agreement as proposed. 

Applicability Date 

Commentators asked the IRS to 

confirm that the definition of salary 

reduction agreement provided in the 

temporary and proposed regulation 

would apply prospectively only and, 

therefore, would not affect contributions 

to a section 403(b) plan made prior to 

November 16, 2004, the date the 

temporary and proposed regulation 

went into effect. As explicitly set forth 

in § 31.3121(a)(5)–2T the temporary and 

proposed regulation was applicable to 

contributions to section 403(b) annuity 

plans made on or after November 16, 

2004. Therefore, the Internal Revenue 


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64942 Federal Register / Vol. 72, No. 222 / Monday, November 19, 2007 / Rules and Regulations 

Service will not apply the temporary 

and proposed regulation to 

contributions made to any section 

403(b) plan prior to November 16, 2004, 

for purposes of determining whether 

such contributions were subject to FICA 

tax. The final regulation will apply only 

to contributions made to any section 

403(b) plan on or after November 15, 

2007. 

Special Analyses 

It has been determined that this 

Treasury decision is not a significant 

regulatory action as defined in 

Executive Order 12866. Therefore, a 

regulatory assessment is not required. It 

has also been determined that section 

553(b) and (d) of the Administrative 

Procedure Act (5 U.S.C. chapter 5) do 

not apply to this regulation, and because 

the regulation does not impose a 

collection of information on small 

entities, the Regulatory Flexibility Act 

(5 U.S.C. chapter 6) does not apply. 

Drafting Information 

The principal author of this regulation 

is Neil D. Shepherd, Office of Division 

Counsel/Associate Chief Counsel (Tax 

Exempt and Government Entities). 

However, other personnel from the IRS 

and Treasury Department participated 

in its development. 

List of Subjects in 26 CFR Part 31 

Employment taxes, Income taxes, 

Penalties, Pensions, Railroad retirement, 

Reporting and recordkeeping 

requirements, Social security, 

Unemployment compensation. 

Adoption of Amendments to the 

Regulations 

■ Accordingly, 26 CFR part 31 is 

amended as follows: 

PART 31—EMPLOYMENT TAXES 

■ Paragraph 1. The authority citation 

for part 31 continues to read in part as 

follows: 

Authority: 26 U.S.C. 7805 * * * 

■ Par. 2. Section 31.3121(a)(5)–2 is 

added to read as follows: 

§ 31.3121(a)(5)–2 Payments under or to an 

annuity contract described in section 

403(b). 

(a) Salary reduction agreement 

defined. For purposes of section 

3121(a)(5)(D), the term salary reduction 

agreement means a plan or arrangement 

(whether evidenced by a written 

instrument or otherwise) whereby 

payment will be made by an employer, 

on behalf of an employee or his or her 

beneficiary, under or to an annuity 

contract described in section 403(b)—

(1) If the employee elects to reduce 

his or her compensation pursuant to a 

cash or deferred election as defined at 

§ 1.401(k)–1(a)(3) of this chapter; 

(2) If the employee elects to reduce 

his or her compensation pursuant to a 

one-time irrevocable election made at or 

before the time of initial eligibility to 

participate in such plan or arrangement 

(or pursuant to a similar arrangement 

involving a one-time irrevocable 

election); or 

(3) If the employee agrees as a 

condition of employment (whether such 

condition is set by statute, contract, or 

otherwise) to make a contribution that 

reduces his or her compensation. 

(b) Effective/applicability date. This 

section is applicable on November 15, 

2007. 

§ 31.3121(a)(5)–2T [Removed] 

■ Par. 3. Section 31.3121(a)(5)–2T is 

removed. 

Approved: November 13, 2007. 

Linda E. Stiff, 

Deputy Commissioner for Services and 

Enforcement. 

Eric Solomon, 

Assistant Secretary of the Treasury (Tax 

Policy). 

[FR Doc. 07–5730 Filed 11–14–07; 1:17 pm] 

BILLING CODE 4830–01–P 

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: Final rule; approval of 

amendments. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSM), are approving amendments to 

the Texas regulatory program (Texas 

program) and the Texas abandoned 

mine land reclamation plan (Texas plan) 

under the Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act). Texas proposed revisions to and 

additions to regulations concerning post 

mining land uses; terms and conditions 

of the bond; topsoil redistribution; 

standards for revegetation success; 

public hearing; 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. Also, 

Texas proposed revisions to its statute 

concerning liens and administrative 

penalty for violation of permit 

conditions. Texas intends to revise its 

program and plan to be consistent with 

the corresponding Federal regulations 

and/or SMCRA, to clarify ambiguities, 

and to improve operational efficiency. 

DATES: Effective Date: November 19, 

2007. 

FOR FURTHER INFORMATION CONTACT: 

Alfred L. Clayborne, Director, Tulsa 

Field Office. Telephone: (918) 581–

6430. E-mail: aclayborne@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Texas Program and 

Texas Plan 

II. Submission of the Amendments 

III. OSM’s Findings 

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

VI. 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 State program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of this Act * * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

(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, in the February 

27, 1980, Federal Register (45 FR 

12998). You can find later actions on the 

Texas program at 30 CFR 943.10, 

943.15, and 943.16. 

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. A 

reclamation fee on each ton of coal 

supports the abandoned mine land 

reclamation program. 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 


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