Texas Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

Texas Permanent Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of proposed amendment.

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SUMMARY: OSM is announcing its decision to approve, with certain

additional requirements, a proposed amendment to the Texas permanent

regulatory program (hereinafter, the Texas program) under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA). The proposed

amendment consisted of changes to Texas' existing rules pertaining to

identification of interests and compliance information, review of

permit applications, criteria for permit approval or denial, and

Railroad Commission of Texas (Commission) review of outstanding

permits. The amendment was intended to revise the Texas program to be

consistent with the corresponding Federal regulations.

EFFECTIVE DATE: March 27, 1995.

FOR FURTHER INFORMATION CONTACT: James H. Moncrief, telephone: (918)

581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program.

II. Proposed Amendment.

III. Director's Findings.

IV. Summary and Disposition of Comments.

V. Director's Decision.

VI. Procedural Determinations.

I. Background on the Texas Program

On February 16, 1980, the Secretary of the Interior conditionally

approved the Texas program. General background information on the Texas

program including the Secretary's findings, the disposition of

comments, and the conditions of approval of the Texas program can be

found in the February 27, 1980, Federal Register (45 FR 12998).

Subsequent actions concerning the Texas program and program amendments

are codified at 30 CFR 943.15 and 943.16.

II. Proposed Amendment

By letter dated May 24, 1994 (Administrative Record No. TX-576),

Texas submitted to OSM a proposed amendment to its program pursuant to

SMCRA. Texas submitted the proposed amendment in response to the

required amendments codified at 30 CFR 943.16 [[Page 15676]] (c) (1)

and (2), (d), (f), (j) (1), (2), (3), and (4), (r), and (s) (59 FR

13200, March 21, 1994). The provisions of the Texas Coal Mining

Regulations (TCMR) at 16 Texas Administrative Code (TAC) 11.221 and of

the Texas Surface Coal Mining and Reclamation Act (TSCMRA) at Article

5920-11 of the Texas Revised Civil Statutes Annotated that Texas

proposed to amend were: TCMR 778.116(m), identification of interests

and compliance information; TCMR 786.215 (e)(1) and (f), review of

permit applications; TCMR 786.216 (i) through (o), criteria for permit

approval or denial; TCMR 788.225 (f) through (i), commission review of

outstanding permits; and section 21(c) of TSCMRA, reporting notices of

violations in permit applications.

OSM announced receipt of the proposed amendment in the June 30,

1994, Federal Register (59 FR 33705), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (Administrative Record No. TX-576.07).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended August 1, 1994.

During its review of the amendment, OSM identified concerns

relating to the provisions of Texas' regulations and statute at TCMR

778.116(m), identification of interests and compliance information;

TCMR 786.215(e)(1), review of permit applications; TCMR 788.225(g),

Commission review of outstanding permits; and section 21(c) of TSCMRA,

reporting notices of violations in permit applications. OSM notified

Texas of the concerns by letter dated August 11, 1994 (Administrative

Record No. TX-576.12).

Texas responded in a letter dated October 6, 1994, by submitting a

revised amendment (Administrative Record No. TX-576.13). Texas proposed

further revisions to TCMR 778.116(m), identification of interests and

compliance information; TCMR 786.215(e)(1), review of permit

applications; and TCMR 788.225(g), Commission review of outstanding

permits. Texas also proposed to recodify previously proposed TCMR

788.225 (h) and (i), respectively, as TCMR 788.226(g)(2) and (h). Texas

also stated that it was not, at this time, proposing any formal program

amendment pertaining to section 21(c) of TSCMRA. Therefore, OSM

considers section 21(c) of TSCMRA to be withdrawn from consideration in

this amendment, and the required amendment at 30 CFR 943.16(r) remains

outstanding.

Based upon the revisions to the proposed program amendment

submitted by Texas, OSM reopened the public comment period in the

October 27, 1994, Federal Register (59 FR 53949, Administrative Record

No. TX-576.20). The public comment period ended November 14, 1994.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds, with two additional requirements, that

the proposed regulation revisions submitted by Texas on May 24, 1994,

and as further revised on October 6, 1994, are consistent with the

corresponding provisions of the Federal regulations. Accordingly, the

Director approves the proposed regulation revisions.

In taking this action, the Director notes that, effective November

28, 1994, OSM revised the Federal regulations at 30 CFR Parts 701, 773,

778, 840, and 843 pertaining to the applicant/violator computer system

(AVS) and procedures for ownership and control determinations (59 FR

54306, October 28, 1994). Also, effective November 28, 1994, the Office

of Hearings and Appeals revised related Federal regulations at 43 CFR

part 4, subpart L, pertaining to special rules applicable to surface

coal mining hearings and appeals (59 FR 54356, October 28, 1994). By

letter dated January 18, 1995, OSM notified Texas of these revisions to

the Federal regulations (Administrative Record No. TX-585). The

Director's action in this amendment does not relieve Texas from the

need to further amend its regulations to comply with other provisions

in the revised Federal regulations. When OSM determines which Texas

regulation provisions pertaining to AVS and ownership and control must

be amended to be no less effective than the revised Federal

regulations, it will notify Texas in accordance with 30 CFR 732.17(d).

1. Nonsubstantive Revisions to Texas' Regulations

Texas proposed to recodify its previously-approved right of appeal

regulation at TCMR 788.225(g) (corresponding Federal regulation at 30

CFR 773.21) as TCMR 788.225(h).

Because the proposed recodification of this previously-approved

regulation is nonsubstantive in nature, the Director finds that this

proposed recodification is not inconsistent with SMCRA or the Federal

regulations. The Director approves this proposed recodification.

2. Substantive Revisions to Texas' Regulations That Are Substantively

Identical to the Corresponding Provisions of the Federal Regulations

In response to the required amendments at 30 CFR 943.16(j)(1)

through (3) (finding No. 4(b), 59 FR 13200, 13205, March 21, 1994),

Texas proposed revisions to the following regulations that are

substantive in nature and contain language that is substantively

identical to the corresponding Federal regulation provisions (listed in

parentheses).

TCMR 788.225(f) (3) and (4) (30 CFR 773.20(c)(1)(iii) and (iv)),

remedial measures,

TCMR 788.225(g) and (g)(1) (i) through (iv) (30 CFR 773.21 and

773.21(a)(1) through (4)), rescission procedures, and

TCMR 788.225(g)(2) (30 CFR 773.21(b), cessation of operations.

Because these proposed revisions to Texas' regulations are

substantively identical to the corresponding provisions of the Federal

regulations, the Director finds that they are no less effective in

meeting SMCRA's requirements than the corresponding provisions of the

Federal regulations. The Director approves these regulation revisions

and removes the required amendments at 30 CFR 943.16(j)(1) through (3).

3. TCMR 778.116(m), Identification of Interests and Compliance

Information

In response to the required amendments at 30 CFR 943.16(c)(1) and

(2) (finding No. 2, 59 FR 13200, 13201-13203, March 21, 1994), Texas

proposed to revise TCMR 778.116(m) to require that a permit application

must include,

For any violations of a provision of the Act, Federal Act and

its implementing Federal regulations and all Federal and state

programs under the Federal Act, or of any law, rule or regulation of

the United States, or of any [State] state law, rule or regulation

enacted pursuant to Federal law, rule, or regulation pertaining to

air or water environmental protection * * * a list of all violation

notices received by the applicant during the three year period

preceding the application date, and a list of all unabated cessation

orders and unabated air and water quality violation notices received

prior to the date of the application * * *.

Texas proposed to add the italicized language and to delete the

bracketed language.

The corresponding Federal regulations at 30 CFR 778.14(c), through

the Federal definition of ``violation notice'' at 30 CFR 773.5, require

that a permit application must include information on violation notices

received pursuant to SMCRA, SMCRA's implementing Federal regulations, a

[[Page 15677]] State program, or any Federal or State law, rule, or

regulation pertaining to air or water environmental protection.

At TCMR 700.003(1), Texas defines the term ``Act'' to mean the

``Texas Surface Coal Mining Control and Reclamation Act'' and at TCMR

700.003(10) defines the term ``Federal Act'' to mean the ``Surface

Mining Control and Reclamation Act of 1977 (Pub. L. 95-87).''

Therefore, when Texas requires, at proposed TCMR 778.116(m), that a

permit application include information ``for any violations of a

provision of the Act, Federal Act and its implementing Federal

regulations and all Federal * * * programs approved under the Federal

Act,'' it requires a permit application to include information

regarding violations of TSCMRA, SMCRA, SMCRA's implementing

regulations, and SMCRA-approved Federal programs (OSM-administered

Indian lands program and Federal programs for States).

Furthermore, in a previously proposed and approved amendment

(Administrative Record No. TX-562), Texas stated that the word

``State,'' when capitalized, refers to Texas and, when uncapitalized,

refers to all States within the United States of America. Therefore,

where Texas requires, at proposed TCMR 778.116(m), information for

``violations of a provision of * * * all * * * state programs approved

under the Federal Act,'' it requires a permit application to include

information regarding violations of all SMCRA-approved State programs,

not just the Texas program.

Likewise, where proposed TCMR 778.116(m) requires information on

violations ``of any state law, rule or regulation enacted pursuant to

Federal law, rule or regulation pertaining to air or water

environmental protection,'' it requires a permit application to include

information regarding violations of a law, rule or regulation of any

State, including Texas, enacted pursuant to Federal law, rule or

regulation pertaining to air or water environmental protection.

However, the corresponding Federal regulations at 30 CFR 778.14(c),

through the definition of ``violation notice'' at 30 CFR 773.5, require

information on violation notices of all State laws, rules, and

regulations pertaining to air or water environmental protection, not

just those enacted pursuant to Federal law, rule, or regulation.

Because proposed TCMR 778.116(m) limits the information about

violation notices required in a permit applications to violations of

those State laws, rules, and regulations pertaining to air or water

environmental protection that are enacted pursuant to Federal law,

rule, or regulation, the Director finds that proposed TCMR 778.116(m)

is less effective in meeting SMCRA's requirements than the

corresponding provisions of the Federal regulation at 30 CFR 778.14(c).

Therefore, the Director requires Texas to further revise TCMR

778.116(m) to require a permit application to include information on

all violations of any State law, rule or regulation that pertains to

air or water environmental protection, not just those violations that

were enacted pursuant to Federal law, rule, or regulation. Otherwise,

for the reasons discussed above, the Director approves the proposed

addition of the phrase ``and its implementing Federal regulations and

all Federal and state programs under the Federal Act'' and the use of

the word ``state,'' uncapitalized, in place of the word ``State''

capitalized, and removes the required amendments at 30 CFR 943.16(c)

(1) and (2).

4. TCMR 786.215 (e)(1), and (f), and 786.216(i), Review of Permit

Application

(a) TCMR 786.215(e)(1). In response to the required amendment at 30

CFR 943.16(d), Texas proposed to revise TCMR 786.215(e)(1) to require

the Commission to consider, as a basis for permit denial, information

on ``state'' failure-to-abate cessation orders and unabated imminent

harm cessation orders (finding No. 3(a), 59 FR 13200, 13202, March 21,

1994).

Texas proposed to revise TCMR 786.215(e)(1) by inserting the word

``state,'' uncapitalized, in place of ``State,'' capitalized. As

discussed in finding No. 3, Texas stated in a previously proposed and

approved amendment (Administrative Record No. TX-562) that the word

``State,'' when capitalized, refers to Texas and, when uncapitalized,

refers to all States within the United States of America. Thus, where

proposed TCMR 786.215(e)(1) requires the Commission to consider

information on ``state'' failure-to-abate cessation orders and unabated

``state'' imminent harm cessation orders, it means cessation order and

violation notices incurred in all States, including those incurred in

Texas.

The corresponding Federal regulations at 30 CFR 773.15(b)(1),

through the definition of ``violation notice'' at 30 CFR 773.5,

require, in part, that the regulatory authority consider information on

State failure-to-abate cessation orders and unabated State imminent

harm cessation orders incurred in all States, not just those incurred

in the State where the application is submitted.

Because revised TCMR 786.215(e)(1) requires, as does the Federal

regulation at 30 CFR 773.15(b)(1), that the State regulatory authority

consider, as a basis for permit denial, cessation orders incurred by a

permit applicant in all States, the Director finds that the proposed

revisions to TCMR 786.215(e)(1) are no less effective in meeting

SMCRA's requirements than the corresponding provisions of the Federal

regulation at 30 CFR 773.15(b)(1). The Director approves the proposed

use of the word ``state,'' uncapitalized, in place of the word

``State,'' capitalized, at TCMR 786.215(e)(1) and removes the required

amendment at 30 CFR 943.16(d).

(b) TCMR 786.215(f). In response to the required amendment at 30

CFR 943.16(f) (finding No. 3(b), 59 FR 13200, 13203, March 21, 1994),

Texas proposed to revise TCMR 786.215(f) to require, in part, that,

Before any final determination by the Commission that the

applicant, anyone who owns or controls the applicant, or the

operator specified in the application, controls or has controlled

mining operations with a demonstrated pattern of willful violation

of the Act or Federal Act and its implementing Federal regulations

and all Federal and state programs approved under the Federal Act or

Federal or state laws as used in 30 CFR 773.15(b) of such nature,

duration, and with such resulting irreparable damage to the

environment that indicates an intent not to comply with the

provisions of the Act or Federal Act and its implementing Federal

regulations and all Federal and state programs approved under the

Federal Act or Federal or state laws as used in 30 CFR 773.15(b),

no permit shall be issued and [before] a hearing shall be held [and

a final determination that no pattern of willful violations exists].

* * * The Commission shall deny an application after a determination

has been made that a pattern of willful violations exists.

Texas proposed to add the italicized language and to delete the

bracketed language. The proposed regulation further provides that the

applicant or operator shall be afforded the opportunity for an

adjudicatory hearing in accordance with TCMR 787.222.

Section 510(c) of SMCRA and the Federal regulation at 30 CFR

773.15(b)(3) prohibit issuance of a permit when the regulatory

authority makes a finding that the applicant, anyone who owns or

controls the applicant, or the operator specified in the application,

controls or has controlled surface coal mining and reclamation

operations with a demonstrated pattern of willful violations of the Act

of such nature and duration, and with resulting irreparable damage to

the environment, as to [[Page 15678]] indicate an intent not to comply

with the Act. The term ``Act,'' as used in section 510(c) of SMCRA and

30 CFR 773.15(b)(3), includes SMCRA, its implementing Federal

regulations, and all Federal and State programs approved under SMCRA

(48 FR 44344, 44389, September 28, 1983). The Federal regulation also

requires that the applicant or operator be given an opportunity for an

adjudicatory hearing on the determination, as provided for at 30 CFR

775.11, before such a finding becomes final.

As discussed in finding No. 3, Texas defines the term ``Act'' to

mean the ``Texas Surface Coal Mining Control and Reclamation Act'' and

defines the term ``Federal Act'' to mean the ``Surface Mining Control

and Reclamation Act of 1977 (Pub. L. 95-87).'' Therefore, where

proposed TCMR 786.215(f) requires the Commission to consider as a

demonstrated pattern of willful violation of or as an intent not to

comply with the provisions of ``the Act or Federal Act and its

implementing Federal regulations and all Federal * * * programs

approved under the Federal Act,'' it refers to violations of provisions

of TSCMRA, SMCRA, SMCRA's implementing regulations, and SMCRA-approved

Federal programs (OSM-administered Indian lands program and Federal

programs for States).

As also discussed in finding No. 3, Texas stated in a previously

proposed and approved amendment (Administrative Record No. TX-562) that

the word ``State,'' when capitalized, refers to Texas and, when

uncapitalized, refers to all States within the United States of

America. Therefore, where proposed TCMR 786.215(f) requires the

Commission to consider ``state programs approved under the Federal

Act'' it means the SMCRA programs of any State within the United States

of America, not just the Texas program. Proposed TCMR 786.215(f) also

requires the Commission, when determining whether a pattern of

violations exists, to consider, in part, violations of ``Federal or

state laws as used in 30 CFR 773.15(b).'' The Federal regulations at 30

CFR 773.15(b)(1) require the regulatory authority to consider, as a

basis for permit denial, information concerning, among other things,

violations of SMCRA, any Federal rule or regulation promulgated

pursuant to SMCRA, a State program, and any Federal or State law, rule,

or regulation pertaining to air or water environmental protection.

Because the State provision already specifically encompasses violations

of TSCMRA, SMCRA, SMCRA's implementing regulations, and SMCRA-approved

Federal and State programs, the proposed phrase ``Federal or state laws

as used in 30 CFR 773.15(b)'' must refer only to Federal and State

laws, rules, and regulations pertaining to air or water environmental

protection.

However, the provision of the Federal regulations dealing with

pattern of willful violation determinations, 30 CFR 773.15(b)(3), does

not require the regulatory authority to consider non-SMCRA violations

of Federal and State laws, rules, or regulations pertaining to air or

water environmental protection. The regulatory authority is required to

consider only violations of SMCRA, its implementing Federal

regulations, and SMCRA-approved Federal and State programs. Thus, the

proposed phrase would require the Commission to consider, when

determining whether a pattern of violation exists, a larger set of

violations than is required by the Federal regulations at 30 CFR

773.15(b)(3), thereby increasing the possibility that a pattern of

willful violations exists.

In accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), a

State regulatory authority has the discretion to impose land use and

environmental controls and regulations on surface coal mining and

reclamation operations that are more stringent than those imposed under

SMCRA and the Federal regulations or for which no Federal counterpart

exists. Section 505(b) of SMCRA and 30 CFR 730.11(b) provisions dictate

that such State provisions shall not be construed to be inconsistent

with SMCRA or the Federal regulations. Therefore, the Director approves

the proposed revisions at TCMR 786.215(f) and removes the required

amendment at 30 CFR 943.16(f).

(c) TCMR 786.216(i). In response to the required amendment at 30

CFR 943.16(s) (finding No. 3(b), 59 FR 13200, 13203, March 21, 1994),

Texas proposed to delete existing TCMR 786.216(i) and recodify existing

paragraphs (j) through (o), respectively, as paragraphs (i) through

(n). Existing TCMR 786.216 sets forth criteria for permit approval or

denial, and TCMR 786.216(i) provides that the Commission shall not

approve an application for a permit or permit revision unless the

application affirmatively demonstrates and the Commission finds, in

writing, that a pattern of willful violations of TSCMRA does not exist.

The Federal regulations at 30 CFR 773.15(c) pertain to written

findings required for permit application approval. These regulations do

not require the regulatory authority to make, as a condition for permit

approval, a written finding that a demonstrated pattern of willful

violations of the Act does not exist. However, the Federal regulation

at 30 CFR 773.15(b)(3) prohibits issuance of a permit if the regulatory

authority finds that the applicant, anyone who owns or controls the

applicant, or the operator specified in the application, controls or

has controlled surface coal mining and reclamation operations with a

demonstrated pattern of willful violations of SMCRA of such nature and

duration, and with resulting irreparable damage to the environment as

to indicate an intent not to comply with SMCRA. As discussed in finding

No. 4(b), Texas has proposed at TCMR 786.215(f) requirements for

patterns of willful violations of SMCRA and TSCMRA that are no less

effective than the Federal regulations at 30 CFR 773.15(b)(3).

Because the Federal regulations do not require the regulatory

authority to make, as a condition for permit approval, a written

finding that a demonstrated pattern of willful violations of the Act

does not exist and because Texas has proposed at TCMR 786.215(f)

requirements concerning the existence of a pattern of willful

violations of SMCRA and TSCMRA that are no less effective than the

Federal regulation at 30 CFR 773.15(b)(3), the Director finds that the

provisions of deleted TCMR 786.216(i) are duplicative and unnecessary.

Also, because recodification does not alter the content or meaning of

the recodified regulations, the Director finds that the proposed

recodification of TCMR 786.216 (j) through (o) as (i) through (n) is

not inconsistent with any Federal requirements. Therefore, the Director

(1) approves the deletion of TCMR 786.216(i) and the recodification of

the remaining paragraphs of section .216 and (2) removes the required

amendment at 30 CFR 943.16(s).

5. TCMR 788.225(g)(1), Automatic Suspension and Rescission

In response to the required amendment at 30 CFR 943.16(j)(4), Texas

proposed to revise TCMR 788.225(g)(1) to require that, after a

specified period of time not to exceed 90 days after the Commission has

served on the permittee a notice of a proposed suspension and

rescission, the permit will automatically become suspended and, after a

subsequent period not to exceed 90 days, the permit will automatically

be rescinded, unless the permittee submits adequate proof for the

Commission to find that the permit should not be suspended or

rescinded. [[Page 15679]]

The corresponding Federal regulation at 30 CFR 773.21(a) provides

that,

After a specified period of time not to exceed 90 days the

permit automatically will become suspended, and not to exceed 90

days thereafter rescinded, unless within those periods the permittee

submits proof, and the regulatory authority finds, consistent with

the provisions of Sec. 773.25 of this part, that * * *.''

With one exception, proposed TCMR 788.225(g)(1) is substantively

identical the corresponding Federal regulations at 30 CFR 773.21(a).

The exception is that proposed TCMR 788.225(g)(1) does not include

provisions equivalent to those provided by the Federal phrase

``consistent with the provisions of Sec. 773.25.'' 30 CFR 773.25

specifies standards for challenging ownership and control links and the

status of violations. The Texas program does not have a direct

counterpart to the Federal standards for challenging ownership and

control links and the status of violations at 30 CFR 773.25 or to other

requirements referred to at 30 CFR 773.25.

Therefore, the Director finds that the proposed revisions to TCMR

788.225(g)(1) are less effective than the corresponding Federal

provisions at 30 CFR 773.21(a). The Director approves the proposed

revisions to TCMR 788.225(g)(1) and removes the required amendment at

30 CFR 743.16(j)(4). However, the Director requires Texas to further

revise TCMR 788.225(g)(1), or otherwise revise the Texas program, to

require that the Commission's findings with regard to a permittee's

challenge of the Commission's decision to suspend and rescind an

improvidently issued permit must be consistent with the provisions of

the Federal requirements at 30 CFR 773.25.

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's responses to

them.

1. Public Comments

OSM invited public comments on the proposed amendment. In response

to OSM's invitation, the Texas Natural Resource Conservation Commission

responded on July 5, 1994, that it supported the proposed changes and

on November 7, 1994, that it had no comment on the proposed changes

(Administrative Record Nos. TX-576.08 and TX-576.21).

The Texas Department of Health responded on June 16, 1994, that it

supported the proposed changes to the Railroad Commission of Texas'

coal mining and reclamation regulatory program (Administrative Record

No. TX-576.05).

2. Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Texas program.

The Bureau of Land Management responded on October 31, 1994, that

it had no comments on the revised submittal (Administrative Record No.

TX-576.18).

The Bureau of Mines responded on June 14, 1994, and October 31,

1994, that it had no comments (Administrative Record Nos. TX-576.03 and

TX-576.19).

The Forest Service responded on June 15, 1994, that it had no

comments to offer and on October 20, 1994, that it had no additions or

corrections to offer (Administrative Record Nos. TX-576.04 and TX-

576.15).

The Soil Conservation Service responded on June 22, 1994, that the

proposed amendment should have no adverse effect on the technical

aspects of reconstruction or reclamation and on October 20, 1994, that

it had no comments on the proposal (Administrative Record Nos. TX-

576.06 and TX-576.16).

The U.S. Army Corps of Engineers responded on June 8, 1994, and

October 25, 1994, that it found the amendment satisfactory to that

agency (Administrative Record Nos. TX-576.02 and TX-576.17).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated 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 its amendment

pertain to air or water quality standards. Therefore, OSM did not

request EPA's concurrence.

Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA, Region VI (Administrative Record No. TX-

576.14). EPA did not respond to OSM's request.

4. State Historic Preservation Officer (SHPO) and Advisory Council on

Historic Preservation (ACHP) Comments

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (Administrative Record No.

TX-576.14). Neither responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves, with two

additional requirements, the proposed revisions as submitted by Texas

on May 24, 1994, and as further revised by it on October 6, 1994.

The Director approves (1) as discussed in finding No. 1, the

recodification of existing TCMR 788.225(g) as paragraph (h), concerning

right of appeal and (2) as discussed in finding No. 2, the proposed

revisions to TCMR 788.225(f) (3) and (4), (g), (g)(1) (i) through (iv),

and (g)(2), concerning Commission review of outstanding permits;

finding No. 4a, the proposed use of the word ``state,'' uncapitalized,

in place of the word ``State,'' capitalized, at TCMR 786.215(e)(1),

review of permit applications; finding No. 4b, the proposed revisions

to TCMR 786.215(f) concerning patterns of willful violations; and

finding No. 4c, the deletion of TCMR 786.216(i) and the recodification

of existing TCMR 786.216 (j) through (o), respectively, as TCMR 786.216

(i) through (n), concerning criteria for permit approval or denial.

With the requirement that Texas further revise its rules, the

Director approves, as discussed in finding No. 3, the proposed addition

of the phrase ``and its implementing Federal regulations and all

Federal and state programs under the Federal Act'' and the use of the

word ``state,'' uncapitalized, in place of the word ``State''

capitalized, at TCMR 778.116(m), concerning identification of interests

and compliance information; and finding No. 5, the proposed revisions

to TCMR 788.225(g)(1), concerning Commission review of outstanding

reports.

The Director approves the revisions proposed by Texas with the

provision that they be fully promulgated in identical form to the

revisions submitted to and reviewed by OSM and the public.

The Federal regulations at 30 CFR part 943, codifying decisions

concerning the Texas program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into [[Page 15680]] conformity with the Federal

standards without undue delay. Consistency of State and Federal

standards is required by SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

This final rule is exempted from review by the Office of Management

and Budget under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) 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 since each such 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 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.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

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)).

4. 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.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic effect on a substantial number of a

small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.) The State submittal that 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. Hence, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. 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.

List of Subjects in 30 CFR Part 943

Intergovernmental relations, Surface mining, Underground mining.

Dated: March 21, 1995.

Charles E. Sandberg,

Acting Assistant Director, Western Support Center.

For the reasons set out in the preamble, title 30, chapter VII,

subchapter T, of the Code of Federal Regulations is amended as set

forth below:

PART 943--TEXAS

1. The authority citation for part 943 continues to read as

follows:

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

2. Section 943.15 is amended by adding a new paragraph (j) as

follows:

Sec. 943.15 Approval of amendments to the Texas regulatory program.

* * * * *

(j) The revisions to 16 Texas Administrative Code 11.221, the Coal

Mining Regulations of the Railroad Commission of Texas, as submitted on

May 24, 1994, and as further revised on October 6, 1994, are approved

effective March 27, 1995.

Revisions to the following regulations are approved:

TCMR 778.116(m), identification of interests and compliance

information.

TCMR 786.215(e)(1), review of violations.

TCMR 786.215(f), patterns of willful violations.

TCMR 786.216(i), existing paragraph deleted.

TCMR 786.216(j) through (o), recodified as (i) through (n).

TCMR 786.225(f)(3) and (4), Commission review of outstanding

permits: remedial measures.

TCMR 786.225(g), (g)(1), (g)(1) (i) through (iv), rescission

procedures.

TCMR 786.225(g)(2), cessation of operations.

TCMR 786.225(h), recodification.

3. Section 943.16 is amended by removing and reserving paragraphs

(c), (d), (f), (j), and (s), and adding paragraphs (t) and (u) to read

as follows:

Sec. 943.16 Requried program amendments.

* * * * *

(a)-(j) [Reserved]

* * * * *

(s) [Reserved]

(t) By September 25, 1995, Texas shall formally propose an

amendment to OSM for TCMR 778.116(m) to require a permit application to

include information on all violations of any State law, rule, or

regulation that pertains to air or water environmental protection, not

just those violations that were enacted pursuant to Federal law, rule,

or regulation.

(u) By September 25, 1995, Texas shall formally propose an

amendment to OSM for TCMR 788.225(g)(1) or otherwise revise the Texas

program to require that the Commission's findings with regard to the

permittee's challenge of the Commission's decision to suspend and

rescind an improvidently issued permit must be consistent with the

provisions of the Federal requirements at 30 CFR 773.25.

[FR Doc. 95-7440 Filed 3-24-95; 8:45 am]

BILLING CODE 4310-05-M