[Federal Register Volume 78, Number 33 (Tuesday, February 19, 2013)]
[Rules and Regulations]
[Pages 11579-11583]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03775]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SATS No. TX-065-FOR; Docket ID: OSM-2012-0019]


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 an amendment to the Texas regulatory program 
(Texas program) under the Surface Mining Control and Reclamation Act of 
1977 (SMCRA or the Act). Texas proposed revisions to its regulations 
regarding: definitions; responsibilities; identification of interests 
and compliance information (surface and underground mining); 
identification of interests; mining in previously mined areas; review 
of permit applications; criteria for permit approval or denial; 
commission review of outstanding permits; challenge of ownership or 
control and applicant/violator system procedures; revegetation 
standards of success (surface and underground mining); responsibility: 
general; alternative enforcement; cessation orders; conditions of 
permit environment; application approval and notice; permit revisions; 
permit renewals: completed application; transfer, assignment or sale of 
permit rights: obtaining approval; and requirements for new permits for 
persons succeeding to rights granted under a permit. Texas intends to 
revise its program to be no less effective than corresponding Federal 
regulations, to clarify ambiguities, and to improve operational 
efficiency.

DATES: Effective Date: February 19, 2013.

FOR FURTHER INFORMATION CONTACT: Alfred L. Clayborne, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. Email: aclayborne@osmre.gov.

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 email dated August 9, 2012 (Administrative Record No. TX-702), 
Texas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 
et seq.). Texas submitted the proposed amendment in response to a 
September 30, 2009, letter (Administrative Record No. TX-665) from OSM, 
in accordance with 30 CFR 732.17(c), concerning multiple changes to its 
ownership and control requirements. Texas also made additional changes 
to its regulations on its own initiative. The specific sections in the 
Texas program are discussed in Part III OSM's Findings. Texas intends

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to revise its program to be no less effective than the Federal 
regulations.
    We announced receipt of the proposed amendment in the November 6, 
2012, Federal Register (77 FR 66574). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on December 6, 2012. We did not receive any public 
comments.

III. OSM's Findings

    We are approving the amendment as described below. The following 
are the findings we made concerning the amendment under SMCRA and the 
Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we 
do not specifically discuss below concerning nonsubstantive wording or 
editorial changes can be found in the full text of the program 
amendment available at www.regulations.gov.
    Texas proposed to revise portions of its regulations by making 
minor reference changes. The Texas regulations that contain the minor 
reference changes are listed in the table below. These minor reference 
changes are no less effective than counterpart Federal regulations. 
Therefore, we approve them.

                      Minor Reference Changes Table
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    16 Texas Administrative Code                     Title
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Sec.   12.221.......................  Conditions of Permits:
                                       Environment.
Sec.   12.226.......................  Permit Revisions.
Sec.   12.228.......................  Permit Renewals: Completed
                                       Applications.
Sec.   12.232.......................  Transfer, Assignment or Sale of
                                       Permit Rights: Obtaining
                                       Approval.
Sec.   12.233.......................  Requirements for New Permits for
                                       Persons Succeeding to Rights
                                       Granted Under a Permit.
Sec.   12.239.......................  Application Approval and Notice.
------------------------------------------------------------------------

A. 16 Texas Administrative Code Sec.  12.3 Definitions.

    Texas proposed to add new definitions for Applicant/Violator 
System; Control or controller; Lands eligible for remining; Own, owner, 
or ownership; Remining; and Violation. Texas also revised definitions 
for Knowing or knowingly; Violation notice; and Willful or willfully. 
Texas' new definitions and revised definitions are substantively the 
same as counterpart Federal regulations at 30 CFR 701.5. Therefore, we 
approve Texas' definitions. Texas deleted its previous definition, 
Owned or controlled and owns and controls, which does not have a 
Federal counterpart. The deletion of this previously approved 
definition does not make Texas' program less effective than the Federal 
regulation. Therefore, we approve Texas' deletion.

B. 16 Texas Administrative Code Sec.  12.100 Responsibilities.

    Texas proposed to delete the word ``renewal'' in subsection (c). 
This subsection places the burden on the applicant to insure that the 
application or revision complies with all the Commission requirements. 
We find that Texas' deletion of the word ``renewal'' makes Texas' 
regulation substantively the same as counterpart Federal regulation at 
30 CFR 773.7(b). Therefore, we approve Texas' deletion.

C. 16 Texas Administrative Code Sec.  12.116 Identification of 
Interests and Compliance Information (Surface Mining); Sec.  12.155 
Identification of Interests; and Sec.  12.156 Identification of 
Interest and Compliance Information (Underground Mining).

    Texas proposed to delete old language in Sec.  12.116 regarding 
identification of interests and compliance information for surface 
mining. Texas proposed to add new language regarding certifying and 
updating existing permit information, permit applicant and operator 
information, permit history information, property interest information, 
violation information, and commission actions. We find that Texas' new 
language is substantively the same as counterpart Federal regulations 
at 30 CFR 778.9 through 778.14. Therefore, we approve Texas' revision.
    Texas proposed to delete Sec.  12.155 regarding the identification 
of interest in certifying or updating existing permit information, 
permit applicant and operator information, permit history information, 
property interest information, and violation information. Texas' 
deletion of this section will minimize redundant language found in 
Sec.  12.116 regarding identification of interests and compliance 
information. We find that deleting this section does not make Texas' 
regulation less effective than the Federal regulation. Therefore, we 
approve Texas' deletion.
    Texas proposed to delete old language in Sec.  12.156 regarding the 
identification of interests and compliance information for underground 
mining. Texas proposed new language regarding certifying and updating 
existing permit information, permit applicant and operator information, 
permit history information, property interest information, violation 
information, and commission actions. We find that Texas' new language 
is substantively the same as counterpart Federal regulations at 30 CFR 
778.9 through 778.14. Therefore, we approve Texas' revision.

D. 16 Texas Administrative Code Sec.  12.206 Mining in Previously Mined 
Areas.

    Texas proposed to add new Sec.  12.206 regarding application 
requirements for operations on lands eligible for remining, in which 
the applicant must identify potential environmental and safety issues 
related to prior mining activity, and must describe the mitigating 
measures that will be taken to ensure that the applicable reclamation 
requirements of the regulatory program can be met. We find that this 
new section is substantively the same as the counterpart Federal 
regulation at 30 CFR 785.25. Therefore, we approve Texas' new section.

E. 16 Texas Administrative Code Sec.  12.215 Review of Permit 
Applications.

    Texas proposed to add new language in Sec.  12.215 that requires 
the entry and updating of data into the Applicant Violator System. 
Additionally, Texas is adding new language regarding the review of 
permit history, review of compliance history, and making a permit 
eligibility determination based on this information. We find that 
Texas' new language is substantially the same as counterpart Federal 
regulations at 30 CFR 773.8 through 773.14. Therefore, we approve 
Texas' new language.

F. 16 Texas Administrative Code Sec.  12.216 Criteria for Permit 
Approval or Denial.

    Texas proposed to add new language in Sec.  12.216(16) regarding 
permit findings related to remining sites, that require the application 
to contain lands eligible for remining, an identification of potential 
environmental and safety problems, and mitigation plans that address 
any potential environmental or safety problems. We find that Texas' new 
language is substantially the same as counterpart Federal regulation at 
30 CFR 773.15(m). Therefore, we approve Texas' new language.

G. 16 Texas Administrative Code Sec.  12.225 Commission Review of 
Outstanding Permits.

    Texas proposed to revise parts of Sec.  12.225(d), (e), (g)(1), 
(g)(1)(A), (B), (C), (D), (E), (g)(2), and (h) regarding written 
findings, preliminary findings for

[[Page 11581]]

improvidently issued permits, permit suspension and rescission 
timeframes, and appeal rights. We find that Texas' new language is 
substantially the same as counterpart Federal regulations at 30 CFR 
773.21(c), 773.22(b) and (c), 773.23(a), (b), (c), and (d). Therefore, 
we approve Texas' revisions.

H. 16 Texas Administrative Code Sec.  12.234 Challenge of Ownership or 
Control, Information on Ownership and Control, and Violations, and 
Applicant/Violator System Procedures.

    Texas proposed to add new Sec.  12.234 regarding ownership and 
control challenges specifically the applicability, procedures, burden 
of proof, written agency decisions, and post-permit issuance 
information requirements. We find that Texas' new language is 
substantially the same as counterpart Federal regulations at 30 CFR 
773.25, 773.26, 773.26(a), 773.27, 773.28, 774.11, and 774.12. 
Therefore, we approve Texas' new section.

I. 16 Texas Administrative Code Sec.  12.395 Revegetation: Standards 
for Success (Surface Mining) and Sec.  12.560 Revegetation: Standards 
for Success (Underground Mining).

    Texas revised section 12.395(c)(2)(A) and (B), and (3)(A) and (B) 
of its surface mining regulations; and section 12.560(c)(2)(A) and (B), 
and (3)(A) and (B) of its underground mining regulations regarding 
ground cover requirements and woody plant standards for areas with the 
post-mining land uses of recreation, wildlife habitat, or undeveloped 
land. The proposed changes to Texas' regulations are substantially the 
same as counterpart Federal regulations at 30 CFR 816.116(c)(2) and 
(3), and 30 CFR 817.116(c)(2) and (3). We find that Texas' proposed 
revisions are no less effective than the Federal requirements, that 
vegetative groundcover shall not be less than that required to achieve 
the approved postmining land use. Therefore, we are approving the 
change.

J. 16 Texas Administrative Code Sec.  12.235 Responsibility: General.

    Texas proposed renumbering its previously approved Sec.  12.234 to 
Sec.  12.235 regarding the general responsibilities of the Texas 
Commission, which shall review requests for assistance and determine 
qualified operators, develop and maintain a list of qualified 
laboratories, conduct periodic on-site program evaluations, and 
participate in data coordination with other agencies. This change in 
numbering is done for consistency with other portions of its 
regulations. We find that this revision does not change any authorities 
of the Texas Commission already approved by OSM. Therefore, we approve 
Texas' revision.

K. 16 Texas Administrative Code Sec.  12.676 Alternative Enforcement.

    Texas proposed to add new Sec.  12.676 regarding alternative 
enforcement, specifically for general provisions, criminal penalties, 
and civil actions for relief. We find that Texas' new section is 
substantially the same as counterpart Federal regulations at 30 CFR 
847.2, 847.11, and 847.16. Therefore, we approve Texas' revision.

L. 16 Texas Administrative Code Sec.  12.677 Cessation Orders.

    Texas proposed to add new paragraph Sec.  12.677(g) regarding the 
requirement for written notification to the permittee, the operator, 
and anyone listed or identified as an owner or controller of an 
operation, within 60 days of issuing a cessation order. We find that 
Texas' new section is substantively the same as counterpart Federal 
regulations at 30 CFR 843.11. Therefore, we approve Texas' revision.

IV. Summary and Disposition of Comments

Public Comments

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

Federal Agency Comments

    On August 16, 2012, under 30 CFR 732.17(h)(11)(i) and section 
503(b) of SMCRA, we requested comments on the amendment from various 
Federal agencies with an actual or potential interest in the Texas 
program (Administrative Record No. TX-702.1).
    We did not receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comment

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment 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 this amendment pertains to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment. However, on 
August 16, 2012, under 30 CFR 732.17(h)(11)(i), we requested comments 
from the EPA on the amendment (Administrative Record No. TX-702.1). The 
EPA did not respond to our request.

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 August 16, 2012, we requested comments on Texas' 
amendment (Administrative Record No. TX-702.1), but neither the SHPO 
nor ACHP responded to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Texas sent us 
on August 9, 2012 (Administrative Record No. TX-702).
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 943 that 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--Taking

    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

[[Page 11582]]

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. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve Federal regulations involving 
Indian lands.

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: January 24, 2013.
Leonard V. Meier,
Acting 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        Date of final
       submission date          publication       Citation/description
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                              * * * * * * *
August 9, 2012..............  February 19,     16 TAC Administrative
                               2013.            Code Sections: 12.3;
                                                12.100(c); 12.116;
                                                12.155; 12.156; 12.206;
                                                12.215; 12.216; 12.221;
                                                12.225; 12.226;
                                                12.228;12.232; 12.233;
                                                12.234; 12.235; 12.239;
                                                12.395; 12.560; 12.676;
                                                and 12.677.
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[FR Doc. 2013-03775 Filed 2-15-13; 8:45 am]
BILLING CODE 4310-05-P