Texas Abandoned Mine Land Reclamation Plan, 5330-5333 [E7-1857]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 72, Number 24 (Tuesday, February 6, 2007)]
[Rules and Regulations]
[Pages 5330-5333]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-1857]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[TX-056-FOR]


Texas Abandoned Mine Land Reclamation Plan

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 abandoned mine land 
reclamation plan (Texas plan) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). The Railroad Commission of 
Texas (RCT or Commission) proposed to assume responsibility of the 
abandoned mine land reclamation (AML) emergency program in Texas. The 
Commission also proposed to revise the Texas plan by updating portions 
to reflect its current practices and by removing references to its old 
regulations (Texas Coal Mining Regulations (TCMR)) and replacing them 
with references to its recodified regulations (16 Texas Administrative 
Code (TAC)).

DATES: Effective Date: February 6, 2007.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. E-mail address: 
mwolfrom@osmre.gov.

SUPPLEMENTARY INFORMATION: 

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

[[Page 5331]]

I. Background on the Texas Plan

    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. The program is funded by a reclamation fee collected on 
each ton of coal that is produced. 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 responsibility for reclamation activity 
within the State or on Indian lands if they develop and submit to the 
Secretary of the Interior (Secretary) for approval, a program (often 
referred to as a plan) for the reclamation of abandoned coal mines. On 
the basis of these criteria, the Secretary approved the Texas plan on 
June 23, 1980. You can find background information on the Texas plan, 
including the Secretary's findings, the disposition of comments, and 
the approval of the plan in the June 23, 1980, Federal Register (45 FR 
41937). You can find later actions concerning the Texas plan and 
amendments to the plan at 30 CFR 943.25.

II. Submission of the Amendment

    By letter dated October 11, 2006 (Administrative Record No. TAML-
661), Texas sent us an amendment to its plan under SMCRA (30 U.S.C. 
1201 et seq.) at its own initiative. Texas proposed to assume the AML 
emergency program, update portions of its plan to reflect its current 
practices, and remove references to its old regulations (TCMR) and 
replace them with references to its recodified regulations (16 TAC). We 
announced receipt of the proposed amendment in the November 13, 2006, 
Federal Register (71 FR 66150). 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 13, 2006. We did not receive any public 
comments.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. We are 
approving the amendment.

A. AML Emergency Program Demonstration

    Section 410 of SMCRA authorizes the Secretary to use funds under 
the AML program to abate or control emergency situations in which 
adverse effects of past coal mining pose an immediate danger to the 
public health, safety, or general welfare. In a Federal Register notice 
dated September 29, 1982 (47 FR 42729), we invited states to amend 
their AML plans for the purpose of undertaking emergency reclamation 
programs on our behalf and published guidelines outlining three 
requirements for State assumption of the AML emergency program. For us 
to grant emergency authority to the State agency, the agency must 
demonstrate that it has the following: (1) Statutory authority to 
undertake emergencies, (2) technical capability to design and supervise 
the emergency work, and (3) administrative mechanisms to respond 
quickly to emergencies either directly or through contractors.
1. Statutory Authority
    The Commission has had statutory authority under the Texas Surface 
Coal Mining and Reclamation Act (TSCMRA) section 134.141 to administer 
an emergency response program since approval of the Texas plan on June 
23, 1980. In order to implement this authority, Texas' regulations at 
16 TAC 134.143 and 134.144 provide for right of entry on any land where 
an emergency exists. In a letter dated February 27, 1979, the Governor 
of Texas designated the Commission as the State agency responsible for 
the AML program in Texas. The Attorney General of Texas issued an 
official opinion on March 20, 1980, stating that the Commission is 
authorized under State law to conduct a State reclamation program in 
accordance with the requirements of Title IV of the Federal Surface 
Mining Control and Reclamation Act of 1977, the regulations adopted 
pursuant thereto, and the State Reclamation Plan. Title IV of SMCRA 
covers both the regular AML program and the emergency reclamation 
program.
2. Technical Capability
    The Commission has demonstrated through past performance that it 
has the technical capability to implement an AML emergency program. In 
its October 11, 2006, submission of the amendment, the Commission 
included the following statement in its section of the Texas plan 
titled, ``Staffing,'' to demonstrate the Commission's technical 
capability to design and supervise the emergency work.

    The Surface Mining and Reclamation Division's Abandoned Mine 
Land Reclamation Program staff has * * * demonstrated experience in 
developing and managing AML Projects. Areas of expertise include 
realty (rights of entry, appraisal and liens), environmental 
assessment, engineering design, construction and contract management 
and revegetation and erosion control.
    The Division's Administration and Records Section also provides 
administrative support. The Commission's Finance and Accounting 
Division provides purchasing and contracting support and legal 
support is provided by the Commission's Office of General Counsel.

    Texas has conducted an AML program since 1980. We have found that 
the Texas AML program is run in a cost efficient and professional 
manner. Texas has conducted project design and construction work with a 
high degree of competence and success. Projects are thoroughly analyzed 
and conducted in compliance with all National Environmental Policy Act 
(NEPA) requirements. Construction monitoring, post-construction 
monitoring, and maintenance processes ensure the projects meet contract 
specifications, project objectives, and program goals. Over the years, 
Texas has designed and inspected AML emergency projects for us. 
Technical capabilities used for these emergency reclamation projects 
are the same as those used for normal, high priority reclamation 
projects. We have found that Texas has developed and refined the in-
house investigation, design, and project administration abilities 
necessary to administer an AML program and an AML emergency response 
program.
3. Administrative Mechanisms
    During a review of Texas' revised purchasing and procurement 
procedures at section 884.13(d)(3) of the Texas plan, we found that the 
Texas Building and Procurement Commission (TBPC) has delegated the 
authority to make emergency purchases to all state agencies, including 
the Commission. The TBPC has made the decision to declare an emergency 
purchase the sole responsibility of the agencies and encourages the 
agencies to obtain at least three informal bids, whenever possible, on 
all emergency purchases. Emergency purchases exceeding $25,000 must be 
posted in the Electronic State Business Daily and are subject to pre-
payment audit by the TBPC. Texas' contracting method will allow the 
Commission adequate flexibility to address emergency conditions. Other 
administrative processes required to implement the emergency program 
are the same as those already in place for the Texas AML program.
    In accordance with section 405 of SMCRA and 30 CFR 884.15, Texas 
has submitted an amendment to its AML

[[Page 5332]]

plan, and we have determined, pursuant to 30 CFR 884.14, the following:
    1. The public has been given adequate notice and opportunity to 
comment on the amendment, and the record does not reflect major 
unresolved controversies.
    2. Views of other Federal agencies have been solicited and 
considered.
    3. The State has the legal authority, policies, and administrative 
structure necessary to implement the amendment.
    4. The proposed plan amendment meets all requirements of the 
Federal AML program regulations at 30 CFR Chapter VII, Subchapter R.
    5. The State has an approved State Regulatory Program.
    6. The amendment is in compliance with all applicable State and 
Federal laws and regulations.
    We find that the proposed Texas plan amendment allowing the State 
to assume responsibility for an AML emergency response reclamation 
program on our behalf is in compliance with SMCRA and meets the 
requirements of the Federal regulations. Therefore, we are approving 
Texas' assumption of the AML emergency program.

B. Revisions to Texas' AML Plan

    Texas updated its AML plan to (1) ensure that it has the 
administrative mechanisms to quickly respond to AML emergencies either 
directly or through contractors and (2) reflect current state 
practices. The following table lists the sections of the AML plan that 
Texas revised.

------------------------------------------------------------------------
                 Plan Section                            Topic
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30 CFR 884.13(c)(6)..........................  Rights of Entry--A
                                                description of the
                                                policies and procedures
                                                to be followed by the
                                                Commission regarding
                                                right of entry on lands
                                                for the purpose of
                                                performing AML program
                                                activities.
30 CFR 884.13(d)(2)..........................  Staffing--A description
                                                of the administrative
                                                and management structure
                                                to be used in conducting
                                                the reclamation program,
                                                including the
                                                incorporation of an
                                                organizational chart in
                                                the Texas plan.
30 CFR 884.13(d)(3)..........................  Purchasing and
                                                Procurement--A
                                                description of the
                                                policies and procedures
                                                to be followed by the
                                                Commission regarding
                                                purchasing and
                                                procurement for the AML
                                                program.
------------------------------------------------------------------------

    We find that the requirements of the revised Texas AML plan meet 
the requirements of the Federal regulations at 30 CFR 884.13(a) through 
(e). Therefore, we are approving them.

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 October 25, 2006, and November 7, 2006, under 30 CFR 
884.14(a)(2) and 884.15(a), we requested comments on the amendment from 
various Federal agencies with an actual or potential interest in the 
Texas plan (Administrative Record No. TAML-661.1). No comments were 
received.

V. OSM's Decision

    Based on the above findings, we approve the amendment Texas sent us 
on October 11, 2006. To implement this decision, we are amending the 
Federal regulations at 30 CFR part 943, which codify decisions 
concerning the Texas plan. We find that good cause exists under 5 
U.S.C. 553(d)(3) to make this final rule effective immediately. Section 
405 of SMCRA requires that the State's plan demonstrate that the State 
has the capability of carrying out the provisions of the Act and 
meeting its purposes. Making this rule effective immediately will 
expedite that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

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

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 and Tribal abandoned mine land reclamation plans and 
plan amendments because each program is drafted and promulgated by a 
specific State or Tribe, not by OSM. Decisions on proposed abandoned 
mine land reclamation plans and plan amendments submitted by a State or 
Tribe are based solely on a determination of whether the submittal 
meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 
30 CFR part 884 of the Federal regulations.

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 abandoned mine reclamation programs. 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 405(d) of SMCRA requires State abandoned mine 
land reclamation programs to be in compliance with the procedures, 
guidelines, and requirements established under SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
This determination is based on the fact that the Texas plan does not 
provide for reclamation and restoration of land and water resources 
adversely affected by past coal mining on Indian lands. Therefore, the 
Texas plan has no effect on federally-recognized Indian tribes.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under

[[Page 5333]]

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 agency decisions on proposed State and Tribal abandoned mine 
land reclamation plans and plan amendments are categorically excluded 
from compliance with the National Environmental Policy Act (42 U.S.C. 
4332) by the Manual of the Department of the Interior (516 DM 13.5 
(B)(29)).

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 regulations did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 943

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 30, 2007.
Brent Wahlquist,
Acting Director, Office of Surface Mining Reclamation and Enforcement.

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


Sec.  943.25  Approval of Texas abandoned mine land reclamation plan 
amendments.

* * * * *

------------------------------------------------------------------------
Original amendment submission    Date of final
             date                 publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
10/11/2006...................          2/6/2007  Emergency response
                                                  reclamation program;
                                                  AML Plan sections
                                                  884.13(c)(6), (d)(2)
                                                  and (d)(3).
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[FR Doc. E7-1857 Filed 2-5-07; 8:45 am]
BILLING CODE 4310-05-P