Texas Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-035-FOR]

Texas Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Texas regulatory

program (hereinafter referred to as the ``Texas program'') under the

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

amendment consists of revisions to Texas' regulations pertaining to

definitions, prime farmland, small operator assistance, release of

performance bond, and backfilling and grading. The amendment is

intended to revise the Texas program to be consistent with the

corresponding Federal regulations.

EFFECTIVE DATE: June 8, 1998.

FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface

Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470,

Tulsa, Oklahoma 74135-6548, Telephone: (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program

II. Submission of the 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. Background information on the Texas

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the February

27, 1980 Federal Register (45 FR 12998). Subsequent actions concerning

the conditions of approval and program amendments can be found at 30

CFR 943.10, 943.15, and 943.16.

II. Submission of the Proposed Amendment

By letter dated December 1, 1997 (Administrative Record No. TX-

644), Texas submitted and amendment to its program pursuant to SMCRA.

Texas submitted the amendment in response to a June 17, 1997, letter

(Administrative Record No. 640) and OSM sent to Texas in accordance

with 30 CFR 732.17(c). Texas amended its regulations at Chapter 12 of

the Texas Administrative Code (TAC) pertaining to definitions, prime

farmland, small operator assistance, release of performance bond, and

backfilling and grading.

OSM announced receipt of the proposed amendment in the December 29,

1997, Federal Register (62 FR 67598) and in the same document opened

the public comment period and provided an opportunity for a public

hearing or meeting on the adequacy of the amendment. The public comment

period closed on January 28, 1998. Because no one requested a public

hearing or meeting, none was held.

During its review of the amendment, OSM identified concerns

relating to release of performance bond and backfilling and grading.

OSM notified Texas of the concerns by letter dated February 12, 1998

(Administrative Record No. TX-644.06). Texas responded in a letter

dated March 6, 1998 (Administrative Record No. TX-644.07, by submitting

revisions to its amendment. Based upon the revisions to the proposed

program amendment submitted by Texas, OSM reopened the public comment

period in the April 29, 1998, Federal Register (63 FR 23407). The

public comment period closed on May 14, 1998.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

Revisons not specifically discussed below concern nonsubstantive

wording changes, or revised cross-references and paragraph nota6tions

to reflect organizational changes resulting from this amendment.

A. Revisions to Texas' Regulations That Are Substantively Identical to

the Corresponding Provisions of the Federal Regulations

The State regulations listed in the table below contain language

that is the same as or similar to the corresponding sections of the

Federal regulations. Differences between the State regulations and the

Federal regulations are nonsubstantive.

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Topic State regulation Federal counterpart regulation

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Definition of Previously Mined 16 TAC 12.3........................... 30 CFR 701.5

Area.

Definition of Qualified 16 TAC 12.3........................... 30 CFR 701.5

Laboratory.

Definition of Thick Overburden... 16 TAC 12.3........................... 30 CFR 816.105(a)

Definition of Thin Overburden.... 16 TAC 12.3........................... 30 CFR 816.104(a)

Prime Farmland................... 16 TAC 12.201(d)(5)................... 30 CFR 785.17(e)(5)

Terms and Conditions of the Bond. 16 TAC 12.309(1)...................... 30 CFR 800.21(f)

Release of Performance Bond-- 16 TAC 12.312 (a)(1), (a)(2), (a)(3).. 30 CFR 800.40 (a)(1), (a)(2), (a)(3)

Application.

Release of Performance Bond-- 16 TAC 12.312 (b)(1), (b)(2).......... 30 CFR 800.40 (b)(1), (b)(2)

Inspection.

Release of Performance Bond-- 16 TAC 12.313 (a), (a)(1), (a)(2), 30 CFR 800.40 (c), (c)(1), (c)(2),

Criteria and Schedule. (a)(3), (b), (d), (f). (c)(3), (d), (f), (g)

Backfilling and Grading: Thin 16 TAC 12.387......................... 30 CFR 816.104(b)

Overburden.

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Backfilling and Grading: Thick 16 TAC 12.388......................... 30 CFR 816.105(b)

Overburden.

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Because the above proposed revisions are identical in meaning to

the corresponding Federal regulations, the Director finds that Texas'

proposed regulations are no less effective than the Federal

regulations.

B. Small Operator Assistance Program (SOAP)

1. 16 TAC 12.237 Eligibility for Assistance

At section 12.237(2), Texas amended the eligibility requirements

for participation in its small operator assistance program by

increasing the amount of the probable total actual and attributed

production allowed for applicants from 100,000 to 300,000 tons. At

section 12.237(2) (B) and (C), Texas increased the baseline percentage

above which ownership will play a role in determining attributed coal

production from 5 to 10 percent.

The Director finds that the proposed revisions are consistent with

the requirements of the Federal regulations at 30 CFR 795.6(a)(2), and

is approving them.

2. 16 TAC 12.243 Applicant Liability

Texas revised section 12.243(a) to require that a coal operator who

has received assistance pursuant to sections 12.236 and 12.240

reimburse the Commission for the cost of the services rendered. Texas

revised section 12.243(a)(4) to specify that reimbursement will be

required if the Commission finds that the operator's actual and

attributed annual production of coal for all locations exceeds 300,000

tons during the 12 months immediately following the date on which the

operator is issued the surface coal mining and reclamation permit.

Texas revised section 12.243(a)(5) to specify that reimbursement will

be required if the permit is sold, transferred, or assigned to another

person and the transferee's total actual and attributed production

exceeds the 300,000-ton production limit during the 12 months

immediately following the date on which the permit was originally

issued.

The Director finds that the revisions to section 12.243 make it

substantively identical to the Federal regulation at 30 CFR 795.12, and

is approving the revisions.

3. 16 TAC 12.236 and 12.240

In the June 17, 1997, letter that was sent to Texas in accordance

with 30 CFR 732.17(c), OSM also notified Texas of changes needed to its

small operator assistance program regulations pertaining to program

services and data requirements. Texas noted in this proposed amendment

that it will propose revisions to its regulations at 16 TAC 12.236

(Program Services) and 12.240 (Data Requirements) in a future amendment

following appropriate statutory changes. Texas also stated that it

currently has no small operator assistance program and has no current

or potential operations that may qualify for program assistance.

Therefore, it is the Director's understanding that Texas will not

implement its small operator assistance program regulations until after

it amends its regulations at 16 TAC 12.236 and 12.240.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the proposed amendment, but none

were received.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Texas program (Administrative

Record No. TX-644.03). By letter dated December 24, 1997, the U.S. Army

Corps of Engineers commented that its review found the changes to be

satisfactory (Administrative Record No. TX-644.05).

Environmental Protection Agency (EPA).

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

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

proposed 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 this amendment pertain to air

or water quality standards. Therefore, OSM did not request the EPA's

concurrence.

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

amendment from the EPA (Administrative Record No. TX-644.01). The EPA

did not respond to OSM's request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments on proposed amendments which may have an effect on historic

properties from the SHPO and ACHP. OSM solicited comments on the

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

TX-644.02). Neither the SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Texas on December 1, 1997, and as revised on

March 6, 1998.

The Director approves the regulations proposed by Texas with the

provision that they be fully promulgated in identical form to the

regulations 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 conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Executive Order 12866

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

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, 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

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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.

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)).

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 has determined 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

corresponding 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. Accordingly, 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 corresponding Federal regulations.

Unfunded Mandates

OSM has determined and certifies pursuant to the Unfunded Mandates

Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a

cost of $100 million or more in any given year on local, state, or

tribal governments or private entities.

List of Subjects in 30 CFR Part 943

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 22, 1998.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 943 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 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 of final

date publication Citation/description

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* * * *

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December 1, 1997.............. June 8, 1998..... 16 TAC 12.3;

12.201(d)(5);

12.237(2), (2)(B)

and (C); 12.243(a),

(a)(4) and (5);

12.309(1); 12.312(a)

and (b); 12.313(a),

(b), (d), and (f);

12.387; 12.388.

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[FR Doc. 98-15241 Filed 6-5-98; 8:45 am]

BILLING CODE 4310-05-M