Texas Abandoned Mine Land Reclamation Plan and Regulations, 64810-64817 [2023-20018]

Agencies

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

[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Rules and Regulations]
[Pages 64810-64817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20018]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SATS No. TX-071-FOR; Docket No. OSM-2019-0011; S1D1S SS08011000 
SX064A000 234S180110; S2D2S SS08011000 SX064A000 23XS501520]


Texas Abandoned Mine Land Reclamation Plan and Regulations

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 
(OSMRE), are approving an amendment to the Texas abandoned mine land 
reclamation plan (Texas Plan) and regulations under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act). Texas proposed 
to revise its existing Plan and regulations in response to OSMRE's 
request to amend the Texas Plan and to improve the readability and 
efficiency of the document.

DATES: October 20, 2023.

FOR FURTHER INFORMATION CONTACT: Joe Maki, Director, Tulsa Field 
Office, Office of Surface Mining Reclamation and Enforcement, 1645 
South 101st East Avenue, Suite 145, Tulsa, Oklahoma 74128-4629. 
Telephone (918) 581-6430, Email: [email protected].

SUPPLEMENTARY INFORMATION: 

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

I. Background on the Texas Program and Plan

    The Abandoned Mine Land Reclamation (AML) 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 primarily 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 for 
approval to the Secretary of the Interior a program (often referred to 
as a plan) for the reclamation of coal mines abandoned or otherwise 
left in an inadequate reclamation status at the time SMCRA was enacted.
    On June 23, 1980, the Secretary of the Interior approved the Texas 
Plan. You can find general background information on the Texas Plan, 
including the Secretary's findings and the disposition of comments, in 
the June 23, 1980, Federal Register (45 FR 41937). You can also find 
later actions concerning Texas's AML Program and Plan amendments at 30 
CFR 943.25.

II. Submission of the Amendment

    Under the authority of 30 CFR 884.15, OSMRE by letter dated March 
8, 2019 (Administrative Record No. TX-0707), directed Texas to update 
the Texas Plan. In that letter, known as a Part 884 letter, OSMRE 
indicated that the Texas Plan required revisions to meet the 
requirements of SMCRA as revised on December 20, 2006, by the Tax 
Relief and Health Care Act of 2006 (Pub. L. 109-432), and in response 
to changes made to the implementing Federal regulations as revised on 
November 14, 2008 (73 FR 67576), and February 5, 2015 (80 FR 6435). The 
letter required Texas to provide either ``(1) a proposed written 
Reclamation Plan amendment or, (2) a description of the Reclamation 
Plan amendments you will propose in response to the revised regulations 
or, (3) a detailed statement explaining why [Texas] believe[d] no 
amendment to [Texas's] Reclamation Plan is necessary.'' The letter 
further provided Texas with a summary of the changes to the Federal 
Program that might require amendments to the Texas Plan to ensure 
Texas's program was consistent with and no less effective than the 
Federal Program.
    By letter dated December 3, 2019 (Administrative Record No. TX-
708), Texas sent us amendments to the Texas Plan and conforming State 
regulations. The Texas amendments are intended to address all required 
amendments identified in OSMRE's letter dated March 8, 2019. Texas's 
amendments will revise the State's existing AML Plan and AML program 
regulations.
    We announced receipt of the proposed amendments in the July 20, 
2020, Federal Register (85 FR 43759). In the same document, we opened a 
public comment period and provided an opportunity for a public hearing 
or meeting on the amendment. We received three comments. We did not 
hold a public hearing or meeting because none were requested. The 
public comment period ended on August 19, 2020.
    In compliance with 30 CFR 884.14, Texas also allowed public input 
on the Texas Plan and held a public comment period during the 
development of the State regulations. The comment period on the 
regulatory amendments was from August 23, 2019, to September 23, 2019 
(Administrative Record No. TX-708.04). Texas received no comments. In 
addition, in November, 2019, the Railroad Commission of Texas provided 
public notice that it was considering adoption of the amended and 
restated Texas Plan and provided an opportunity for public input on the 
proposal.

III. OSMRE's Findings

A. Texas's Explanation for Not Amending Certain Provisions

    In response to our Part 884 letter, Texas stated that several items 
mentioned in the Part 884 letter do not appear to be applicable or 
require regulatory or plan changes. We agree.
    First, in our Part 884 letter, we advised that certified States 
such as Texas are no longer authorized to set aside AML funds for 
future reclamation. In response, Texas stated that it has not 
undertaken future reclamation set aside and is no longer eligible to do 
so.
    Second, in our Part 884 letter, we advised of certain changes 
related to

[[Page 64811]]

requirements and restrictions of acid mine drainage treatment and 
abatement programs for certified States. In response, Texas stated that 
it has not undertaken an acid mine drainage program and does not intend 
to create one in the foreseeable future.
    Third, in our Part 884 letter, we advised of changes to certain 
requirements for uncertified States. In response, Texas noted that 
these provisions are inapplicable to Texas as a certified State.
    Fourth and finally, we advised that 30 CFR part 887 has been 
amended to clarify funding sources for subsidence insurance grants. In 
response, Texas stated that it does not operate a subsidence insurance 
program and does not intend to create one in the foreseeable future.
    Texas's responses to these provisions of the Part 884 letter are 
appropriate.

B. Revisions to the Texas Plan

    Our review of a proposed State Reclamation Plan amendment is 
governed by section 405 of SMCRA and 30 CFR part 884. Section 405(e) of 
SMCRA requires a State Reclamation Plan to ``generally identify the 
areas to be reclaimed, the purposes for which the reclamation is 
proposed, the relationship of the lands to be reclaimed and the 
proposed reclamation to surrounding areas, the specific criteria for 
ranking and identifying projects to be funded, and the legal authority 
and programmatic capability to perform such work[.]'' Under 30 CFR 
884.15(a), we follow the procedures of 30 CFR 884.14 if the State 
proposes a major amendment that changes the objectives, scope, or major 
policies followed by the State in the conduct of its reclamation 
program. Texas generally proposes to respond to our Part 884 letter, 
update the objectives, scope, and policies of its program to reflect 
its status as a certified state, and amend its plan consistent with the 
2006 changes to SMCRA and the associated changes to the implementing 
Federal regulations. Accordingly, we are considering Texas's proposal 
as a major amendment and following the procedures set out in 30 CFR 
884.14.
    The rule at 30 CFR 884.14 requires: (1) public input, (2) 
solicitation and consideration of the views of interested Federal 
agencies, (3) a determination that the State has the legal authority, 
policies, and administrative structure necessary to carry out the 
proposed plan, (4) a determination that the proposed plan meets the 
requirements of 30 CFR Subchapter R, (5) a determination that the State 
has an approved regulatory program, and (6) a determination that the 
plan is in compliance with all applicable State and Federal laws and 
regulations. The rule at 30 CFR 884.13 describes the contents that each 
State Reclamation Plan must include.
    We make the following findings concerning Texas's AML plan 
amendment under SMCRA and the Federal regulations at 30 CFR 884.13 and 
884.14. We are approving the Texas Plan amendment, with an exception, 
as described below.
    Before approving a State Reclamation Plan, we must ``h[o]ld a 
public hearing on the plan within the State which submitted it, or 
ma[k]e a finding that the State provided adequate notice and 
opportunity for public comment in the development of the plan.'' 30 CFR 
884.14(a)(1).
    We find that Texas provided adequate notice and opportunity for 
public comment in the development of the plan. A Railroad Commission of 
Texas Open Meeting Notice for November 19, 2019, provided notice to the 
public that the Railroad Commission (Commission) was considering 
adoption of the amended and restated Texas Plan. The notice stated that 
the Commission would provide an opportunity for public input on any 
matter under the jurisdiction of the Commission, in accordance with a 
policy adopted on September 7, 2005. The notice further provided 
opportunities for concerned individuals to view the open meeting via 
webcast and offered accommodations and auxiliary aids or services for 
persons with a disability.
    Additionally, when Texas submitted the proposed Texas Plan, we 
announced receipt of the proposed amendment in the Federal Register, 
opened a 30-day public comment period, and provided an opportunity for 
a public hearing or meeting on the amendment. We did not hold a public 
hearing or meeting because none were requested.
    Before approving a State Reclamation plan, we must solicit and 
consider the views of other Federal agencies having an interest in the 
plan. 30 CFR 884.14(a)(2). As discussed in Part IV below, we solicited 
the views of other Federal agencies and received no comments.
    Before approving a State Reclamation plan, we must determine that 
the State has an approved State regulatory program. 30 CFR 
884.14(a)(5). 30 CFR part 943 codifies the approval and amendments of 
Texas's state regulatory program.
    Finally, before approving a State Reclamation plan, we must 
determine that the State has the legal authority, policies, and 
administrative structure necessary to carry out the proposed plan, that 
the plan meets the requirements of 30 CFR Part VII Subchapter R 
(``Abandoned Mine Land Reclamation''), and that the plan is in 
compliance with all applicable State and Federal laws and regulations. 
As discussed in detail below, we find that the proposed Texas Plan 
meets these requirements and the specific content requirements of 30 
CFR 884.13.
    Under 30 CFR 884.13(a)(1), a State Reclamation Plan must include a 
designation by the Governor of the State of the agency authorized to 
administer the State reclamation program and administer grants under 
Part 885 or 886. The revised Texas Plan includes a copy of the 
Governor's 1979 letter designating the Railroad Commission of Texas as 
the agency authorized to administer the State AML Program and to 
receive and administer grants. Texas has incorporated the Governor's 
letter designating the Railroad Commission as the agency authorized to 
administer the State AML Program and receive and administer grants in 
the Texas Plan as required under 30 CFR 884.13(a)(1). The 1979 
designation remains current and provides adequate authority for the 
Railroad Commission to carry out the plan.
    Under 30 CFR 884.13(a)(2), a State Reclamation Plan must include a 
legal opinion from the State Attorney General or the chief legal 
officer of the designated state agency that the agency has authority 
under State law to conduct the program in accordance with the 
requirements of Title IV of SMCRA. Texas provided a copy of the March 
20, 1980, legal opinion from the State Assistant Attorney General 
indicating that the Railroad Commission is the designated agency with 
the authority to conduct the AML Program in accordance with all 
requirements of SMCRA Title IV. Texas has incorporated the Assistant 
Attorney General's letter in the Texas Plan as required under 30 CFR 
884.13(a)(2). The 1980 legal opinion remains current, and there have 
not been any State constitutional or statutory developments that would 
impair the ability of the Railroad Commission to conduct its AML 
Program in accordance with the requirements of Title IV of the Act. 
Federal regulations at 30 CFR 884.13(a)(3) require a description of the 
policies and procedures of the State agency, including the purposes of 
the State AML Program. The Texas Plan includes a Policies and 
Procedures section that provides succinct descriptions of, and legal 
citations for, the purposes of its AML Program consistent with 30 CFR 
884.13(a)(3).

[[Page 64812]]

    Under 30 CFR 884.13(a)(3)(ii), a State Reclamation Plan must 
include the ``specific criteria, consistent with section 403 of the Act 
for ranking and identifying projects to be funded. . . .'' Section 403 
of SMCRA provides that expenditures must reflect certain priorities 
except as provided for under section 411 of SMCRA. Section 411(c) of 
SMCRA provides that expenditures of moneys according to Section 411(b) 
of SMCRA must reflect the objectives and priorities of Section 411(c) 
in lieu of the priorities set forth in section 403. OSMRE's 
implementing regulations at 30 CFR 874.13 and 875.15 respectively list 
the priorities for coal and noncoal AML reclamation programs.
    In our Part 884 letter, we advised Texas that certified States must 
comply with Parts 874 and 875 to maintain certification status. We 
further advised that the 2006 SMCRA amendments revised the reclamation 
priorities in section 403 by removing ``general welfare'' from 
Priorities 1 and 2, including an ``adjacent to'' provision in 
Priorities 1 and 2, and deleting Priorities 4 and 5.
    The revised Texas Plan includes a section entitled ``Ranking and 
Selecting Sites'' that states that Texas will use the priority system 
as outlined in 30 CFR parts 874 or 875 and operate noncoal reclamation 
projects under 30 CFR part 875. The Plan also includes the 
prioritization matrix Texas uses to assess and prioritize potential 
project areas for reclamation. This section is consistent with the Plan 
content requirements of 30 CFR 884.13(a)(3)(ii), which requires 
specific criteria, consistent with SMCRA, for ranking and identifying 
projects to be funded; 30 CFR parts 874 and 875, which list priorities; 
and the direction in our Part 884 letter.
    Reclamation projects will not be undertaken without first receiving 
an Authorization to Proceed from OSMRE. This is in accordance with 
section 405(l) of SMCRA and consistent with 30 CFR 874.15 and 875.19, 
which provide limited liability coverage to certified State coal and 
noncoal reclamation activities, unless the costs or damages were the 
result of gross negligence or intentional misconduct. The requirement 
to receive written authorization from OSMRE before the expenditure of 
construction funds on an individual project is documented as a grant 
condition under 30 CFR 885.16(e).
    Under 30 CFR 844.13(a)(3)(iii), a State Reclamation Plan must 
include policies and procedures for ``coordination of reclamation work 
among the State reclamation program, the Rural Abandoned Mine Program 
administered by the Soil Conservation Service, the reclamation programs 
of any Indian tribes located within the States, and [OSMRE's] 
reclamation programs . . .'' The revised Texas Plan includes a section 
entitled ``Interagency Coordination'' that indicates that the State 
will coordinate with other agencies and offices including the Natural 
Resources Conservation Service and OSMRE, as required, as well as 
multiple other State and Federal entities. By indicating it will 
coordinate and work with all required agencies, Texas's proposed 
section is consistent with the requirements of 30 CFR 
884.13(a)(3)(iii).
    Under 30 CFR 884.13(a)(3)(iv), a State Reclamation Plan must 
include policies and procedures about land acquisition, management, and 
disposal under 30 CFR part 879. In our Part 884 letter, we notified 
Texas that it ``must comply with [30 CFR part 879] when expending funds 
awarded after October 1, 2007 . . .'' We further noted that all 
``moneys received from the sale of property acquired under [section 407 
of SMCRA] is disposed of as if it were unused funds under 30 CFR 886.20 
. . .'' The revised Texas Plan includes a section entitled ``Land 
Acquisition, Management and Disposal'' that states that ``acquisition, 
management, and disposal of abandoned mine(s) land shall be in 
accordance with applicable provisions of 30 CFR part 879 and Texas 
Natural Resources Code Chapter 134 [(Texas Surface Coal Mining and 
Reclamation Act (TSCMARA))].'' By committing to act in accordance with 
30 CFR part 879, Texas has taken action to address this issue on a plan 
level. See 30 CFR 879.15(h) (``You must return all moneys received from 
disposal of land under this part to us. We will handle all moneys 
received under this paragraph as unused funds in accordance with 
Sec. Sec.  885.19 and 886.20 of this chapter.'').
    Under 30 CFR 884.13(a)(3)(v), a State Reclamation Plan must include 
policies and procedures about reclamation on private land in accordance 
with 30 CFR part 882. The revised Texas Plan includes a section 
entitled ``Reclamation on Private Land'' that indicates that the State 
will carry out reclamation activities on private lands in accordance 
with 30 CFR part 882 and the provisions in Texas Natural Resources Code 
Chapter 134 about reclamation work on private land. This section of the 
Texas Plan provides the State's policies and procedures for reclamation 
on private lands and is therefore consistent with the State Reclamation 
Plan content requirements of 30 CFR 884.13(a)(3)(v). Furthermore, by 
committing to act in accordance with 30 CFR part 882 and the previously 
approved provisions of TSCMARA, Texas's proposal meets the requirements 
of Federal regulations.
    Before the 2006 amendments to SMCRA, 30 U.S.C. 1238(a) provided 
that, ``[n]o lien shall be filed against the property of any person, in 
accordance with this subsection, who owned the surface prior to May 2, 
1977, and who neither consented to nor participated in nor exercised 
control over the mining operation which necessitated the reclamation 
performed hereunder.'' In the 2006 amendments to SMCRA, the May 2, 
1977, limitation was deleted. In our Part 884 letter, we notified Texas 
that this language was removed. Texas removed this language from State 
statute in June 2007, and the Texas Plan does not include the former 
language.
    Under 30 CFR 884.13(a)(3)(vi), a State Reclamation Plan must 
include policies and procedures about rights of entry under 30 CFR part 
877. Our Part 884 letter did not note any necessary changes to policies 
and procedures about rights of entry. The Texas Plan includes a section 
entitled ``Rights of Entry'' that indicates that the State will take 
all reasonable actions to obtain written voluntary permission from a 
landowner before conducting reclamation activities. The Texas Plan 
further outlines the authority under the provisions in Chapter 134 of 
TSCMARA and the conditions under which the State can execute 
reclamation activities if the landowner will not provide consent. This 
section of the Texas Plan is consistent with the State Reclamation Plan 
content requirements of 30 CFR 884.13(a)(3)(vi). Furthermore, the 
State's policies and procedures about rights of entry are consistent 
with 30 CFR part 877.
    Under 30 CFR 884.13(a)(3)(vii), a State Reclamation Plan must 
include policies and procedures for public participation and 
involvement in the preparation of the State Reclamation Plan and in the 
State reclamation program. The revised Texas Plan does not meet this 
requirement. It states only that the Commission must conform to the 
Texas Administrative Procedure Act when it issues or amends rules, or 
issues permits under TSCMARA and allows opportunity for public comment 
on adoption or amendment of rules. The general citations in the revised 
Texas Plan to the Texas Administrative Procedure Act relate to 
rulemaking and permit issuance and do not clearly provide procedures 
for participation and involvement in the preparation of the Texas Plan 
or in activities under the State reclamation program. Therefore, we are 
not approving this portion of the amendment. Texas may continue to rely

[[Page 64813]]

on the public participation procedures established in its existing plan 
or, if desired, propose a new amendment to its public participation 
policies and procedures that also meets the requirements of 30 CFR 
884.13(a)(3)(vii).
    As discussed above, the revised Texas Plan includes sections 
responding to the requirements of 30 CFR 884.13(a)(3)(i) through (vii). 
These sections provide updated descriptions of the State's policies and 
procedures for conducting its AML Program including: the purposes of 
the AML Program; specific criteria for ranking and identifying projects 
to be funded; coordination of reclamation work between the State and 
all applicable State and Federal agencies; land acquisition; 
reclamation on private land; and right of entry. The revised Texas 
Plan, with the exception discussed above, is consistent with the State 
Reclamation Plan content requirements of 30 CFR 884.13(a)(3).
    Federal regulations at 30 CFR 884.13(a)(4)(i) require a description 
of the designated agency's organization and relationship to other State 
entities that may participate in or augment the State's AML reclamation 
abilities. The Texas Plan includes a section entitled ``884.13 
Administrative Framework, 884.13(a)(4)(i) Commission Structure and 
Relationships,'' that provides an organizational chart depicting the 
Railroad Commission of Texas, Surface Mining & Reclamation Division, 
and the Abandoned Mine Land and Reclamation Program's place within it.
    Federal regulations at 30 CFR 884.13(a)(4)(ii) require a 
description of the personnel staffing policies that will govern 
assignments within the AML Program. The revised Texas Plan includes a 
section entitled ``Staffing and Personnel Policies'' that provides the 
information required under 30 CFR 884.13(a)(4)(ii).
    Federal regulations at 30 CFR 884.13(a)(4)(iii) require State 
purchasing and procurement systems to meet the requirements of Office 
of Management and Budget Circular A-102, Attachment 0, relating to 
``Grants and Cooperative Agreements with State and Local Governments.'' 
Federal grantmaking agencies were previously required to issue a grants 
management common rule to adopt governmentwide terms and conditions for 
grants to States and local governments. As a result, we notified Texas 
in our Part 884 letter that the attachments to Circular A-102, 
including Attachment 0 referenced in 30 CFR 884.13(a)(4)(iii), have 
been replaced by the grants management common rule at 2 CFR part 200. 
The Federal regulations have not yet been updated to reflect this 
change; however, it is reflected in the revised Texas Plan under the 
section entitled ``Purchasing and Procurement,'' which indicates its 
purchasing and procurement policies are consistent with 2 CFR part 200. 
Additionally, Texas revised its plan to acknowledge, effective 
September 1, 2019, that the Railroad Commission has delegated authority 
to enter in all purchasing functions related to procurement under 
TSCMARA. This section provides descriptions of purchasing and 
procurement systems consistent with the requirements of 30 CFR 
884.13(a)(4)(iii).
    Federal regulations at 30 CFR 884.13(a)(4)(iv) require a 
description of the accounting system to be used by the agency including 
specific procedures for operation of the State AML Fund. The revised 
Texas Plan includes a section entitled ``Accounting System'' that 
describes the Centralized Accounting and Payroll/Personnel System 
uniform statewide accounting system. Referenced Texas Government Code 
Title 10 Subtitle C provides the State accounting and auditing 
procedures. As a condition of its annual grant (and consistent with the 
obligations outlined in the previous paragraph), Texas is required to 
comply with all the conditions of 2 CFR part 200, which addresses 
administrative requirements, cost principles, and audit requirements 
for Federal awards.
    As discussed above, the revised Texas Plan includes four sections 
providing revised descriptions of the State's administrative and 
management structure, staffing and personnel Policies, purchasing and 
procurement; and accounting system. By providing all required 
descriptions of the administrative and management structure of the 
State AML agency, the revised Texas Plan is consistent with all State 
Reclamation Plan content requirements under 30 CFR 884.13(a)(4).
    Under 30 CFR 884.13(a)(5), a State Reclamation Plan must include a 
general description, derived from available data, of the reclamation 
activities to be conducted under the State Reclamation Plan. The 
revised Texas Plan includes a section entitled ``Description of 
Reclamation Activities.'' Texas provided general descriptions derived 
from available data of the reclamation activities to be conducted under 
the State Reclamation Plan including: a map showing the general 
location of known or suspected eligible lands and waters; a description 
of the problems occurring on those lands and waters; and how the Texas 
Plan proposes to address each of the problems. Because Texas is 
certified, the State has already completed reclamation of all known 
high priority coal hazards. Individual project approval and funding are 
appropriately handled through the Authorization to Proceed process 
under 30 CFR 885.16(e). The revised Texas Plan sections entitled 
``Description of Reclamation Activities,'' ``Map of Eligible 
Reclamation Locations,'' ``Description of Problems,'' and ``How 
Reclamation Activities Address Problems'' are consistent with the State 
Reclamation Plan content requirements of 30 CFR 884.13(a)(5) in 
providing general descriptions of reclamation activities to be 
conducted, including maps, descriptions of AML problems, and 
descriptions of hazard abatement strategies.
    Under 30 CFR 884.13(a)(6), a State Reclamation Plan must include a 
general description, derived from available data, of the conditions 
prevailing in the different geographic areas of the State where 
reclamation is planned. The revised Texas Plan includes sections 
entitled: ``Conditions in Geographic Areas''; ``Economic Base''; 
``Significant Esthetic, Historic or Cultural, and Recreational 
Values''; and ``Endangered and Threatened Plant, Fish, and Wildlife and 
Their Habitat'' that provide general descriptions on each subject 
derived from available data on the conditions prevailing in the areas 
of the State where reclamation may occur. The revised Texas Plan 
provides descriptions of the prevailing conditions consistent with the 
requirements of 30 CFR 884.13(a)(6).
    Under 30 CFR 884.13(b), a certified State Reclamation Plan must 
include a commitment to address eligible coal problems found or 
occurring after certification. In our Part 884 letter, we reiterated 
this requirement. The revised Texas Plan includes a section entitled 
``Commitment to Address Eligible Coal Problems'' that provides a 
commitment to address all eligible coal problems found or occurring 
after certification as required under 30 CFR 875.13(a)(3) and 
875.14(b). Texas has indicated it will prioritize coal hazards over 
noncoal. As a condition of certification on May 21, 1992 (57 FR 21640), 
Texas agreed: ``If a coal problem occurs or is identified sometime in 
the future, Texas must seek immediate funding for reclaiming the coal-
related problem. In the event of concurrence with certification by the 
Secretary, Texas has agreed to this condition.'' In section 
884.13(a)(3)(ii) of the amendment, Texas commits to compliance with the 
priority systems outlined in 30 CFR part 874 or 30 CFR part 875. By 
committing to give priority to addressing eligible coal problems found 
or occurring after certification as

[[Page 64814]]

required in 30 CFR 875.13(a)(3) and 875.14(b), the revised Texas Plan 
is consistent with the State Reclamation Plan content requirements of 
30 CFR 884.13(b).
    In our Part 884 letter, we notified Texas that the State 
Reclamation Plan for a certified State may provide for construction of 
specific public facilities related to coal or minerals development in 
accordance with 30 CFR 884.17. Texas declined to include this 
provision.
    In our Part 884 letter, we notified Texas that ``[c]ertified States 
. . . are covered by the limited liability provision when they are 
performing'' coal reclamation and certain noncoal reclamation. As 
background, in 2015, we issued the rule Abandoned Mine Land Reclamation 
Program; Limited Liability for Noncoal Reclamation by Certified States 
and Indian Tribes, 80 FR 6435 (Feb. 5, 2015). The rule gave certified 
states two options for conducting noncoal reclamation projects. First, 
a certified State could expend its prior balance replacement funds and 
certified in lieu funds on projects outside the scope of a SMCRA 
noncoal AML reclamation program but without limited liability 
protection. Second, a certified State can receive limited liability 
protection if it voluntarily uses its prior balance replacement funds 
and certified in lieu funds to conduct noncoal reclamation projects 
pursuant to a SMCRA noncoal AML reclamation program under the 
provisions of section 411(b)-(g) of SMCRA, 30 CFR part 875, and other 
applicable regulations. The rule placed additional administrative 
requirements on States that voluntarily choose to conduct noncoal 
reclamation projects under the second option because OSMRE must verify 
that such projects meet applicable statutory and regulatory 
requirements. 80 FR at 6438-39. The Texas Plan states that noncoal 
reclamation projects will be operated under 30 CFR part 875 to receive 
the limited liability protections of SMCRA. Additionally, as discussed 
in more detail below, Texas retains previously approved regulatory 
language corresponding to the Federal statutory and regulatory limited 
liability provisions.
    In the 2015 rule, we revised Part 875 to ``set forth the procedures 
that certified states must follow if they voluntarily choose to use 
their Title IV funding for noncoal reclamation projects under Part 875 
. . . pursuant to an approved SMCRA noncoal AML reclamation plan.'' 80 
FR at 6439. Those procedures included the contractor eligibility 
requirements set forth in 30 CFR 875.20. In our Part 884 letter, citing 
section 405(l) of SMCRA and 30 CFR 875.20, we notified Texas that a 
certified State must comply with contractor eligibility requirements 
when they are voluntarily conducting noncoal reclamation. Texas's 
existing regulation at 16 Texas Administrative Code (TAC) section 
12.807 requires every successful bidder for an AML contract to be 
eligible under section 12.215 (Review of Permit Applications) at the 
time of contract award to receive a permit or conditional permit and 
requires that bidder eligibility be confirmed by OSMRE's Applicant/
Violator System for each contract to be awarded. Accordingly, Texas's 
program meets the contractor eligibility requirements set forth in 30 
CFR 875.20 and our Part 884 letter.
    Thus, we find that the revised Texas Plan, with the one exception 
noted above, meets all content requirements stipulated under 30 CFR 
884.13 while also updating the State Reclamation Plan and regulations 
consistent with changes made to the Federal program in 2006, 2008, and 
2015. The revised Texas Plan, therefore, meets the requirements of 
OSMRE's March 6, 2019, letter, and we approve it.

B. Revisions to Texas's AML Regulations

    Texas proposes amendments to regulations governing its AML program 
at 16 TAC sections 12.801-12.809, 12.811, 12.812, 12.814-12.816, and 
12.818-12.823. Generally, the changes align Railroad Commission rules 
with SMCRA and the corresponding Federal regulations.
    Non-substantive changes can be found in sections 16 TAC sections 
12.801, 12.802, 12.806, 12.807, 12.809, 12.811, 12.812, 12.814, 12.816, 
12.818, 12.820, 12.821, and 12.822. These changes define terms used 
throughout the regulations, capitalize ``Commission,'' correct rule 
citations and cross-references, and clarify existing language. These 
changes have no substantive impact on the effectiveness of the 
regulation.
    Texas proposes to amend 16 TAC section12.803(a)(3) to add ``or any 
prior balance replacement funds may be used.'' to the end of the 
paragraph. This allows Texas to use prior balance replacement funds 
where a forfeited bond is not sufficient to pay the cost of 
reclamation. This is consistent with 30 CFR 874.12.
    Texas's previously approved regulations at 16 TAC section 12.804 
state that reclamation project expenditures ``shall reflect the 
priorities of Section 403(a) of the Federal Act.'' In our Part 884 
letter, we notified Texas that the 2006 amendments to SMCRA removed the 
phrase ``general welfare'' from Priorities 1 and 2; added an ``adjacent 
to'' provision to Priorities 1 and 2, defining that term as 
``geographically contiguous''; and eliminated Priorities 4 and 5. In 
response, Texas proposes to amend 16 TAC section 12.804 to state that 
projects shall reflect the priorities of Section 403(a) ``in the order 
stated'' and list the priorities from 30 CFR 874.13(a) in the text of 
16 TAC section 12.804. Texas also proposes to provide an updated 
reference to OSMRE's ``Final Guidelines for Reclamation Programs and 
Projects.'' The amended language of 16 TAC section 12.804 is in 
accordance with section 403(a) of SMCRA, consistent with 30 CFR 
874.13(a), and meets the requirements of our Part 884 letter.
    In our Part 884 letter, we further notified Texas that stand-alone 
Priority 3 reclamation is restricted to projects using prior balance 
replacement funds, projects undertaken after the completion of Priority 
1 and 2 sites, and projects completed ``in conjunction with'' Priority 
1 or 2 reclamation projects. We noted that projects ``in conjunction 
with'' Priority 1 and 2 projects must either facilitate Priority 1 or 2 
reclamation or provide reasonable savings toward reclaiming all 
Priority 3 coal problems. Texas is retaining previously approved 
language in 16 TAC Sec.  12.804(c) that addresses these aspects of our 
Part 884 letter.
    The 2006 amendments removed section 403(a)(4) of SMCRA. In 2008, we 
amended 30 CFR 874.14 to change the section heading and revise 
paragraph (a) related to water supply restoration. In response, Texas 
proposes to amend 16 TAC Sec.  12.805 to match the 2008 revision to the 
Federal regulation. The revised language is consistent with 30 CFR 
874.14.
    As discussed in the Texas Plan section above, in our Part 884 
letter, we notified Texas that its State Reclamation Plan must include 
a commitment to address eligible coal problems found after 
certification as required in 30 CFR 875.13(a)(3) and 875.14(b). 
Previously, 16 TAC section 12.808 stated that if eligible coal problems 
were found or occurred after certification, Texas would ``address the 
coal problem utilizing state share funds no later than the next grant 
cycle, subject to the availability of funds distributed to the 
commission in the cycle.'' As amended, 16 TAC section 12.808 states 
that Texas will ``submit to OSMRE a plan that describes the approach 
and funds that will be used to address those problems in a timely 
manner.'' The amended language is in accordance with the statute, 
consistent

[[Page 64815]]

with the requirements of 30 CFR 875.14(b), and meets the requirements 
of our Part 884 letter.
    Unrelated to our Part 884 letter, Texas amended the appraisal 
valuation method in 16 TAC section 12.815 to add: ``The appraisal shall 
state the estimated fair market value of the land as adversely affected 
by past mining and the estimated fair market value of the property as 
reclaimed.'' This edit is consistent with the Federal counterpart at 30 
CFR 882.12.
    Previously, 16 TAC section 12.819(a)(2)(C) stated that Texas could 
acquire coal refuse disposal sites if it made certain written findings, 
including a finding that acquisition of coal refuse disposal sites and 
the coal refuse on those sites would serve the purposes of Texas's 
program. The regulation at 16 TAC section 12.819 also provided that 
OSMRE must approve acquisitions in advance. The Federal regulation at 
30 CFR 879.11(b), as amended, states that a certified State conducting 
noncoal reclamation projects under Part 875, if approved in advance, 
may acquire coal refuse disposal sites with moneys from the Abandoned 
Mine Reclamation Fund and with prior balance replacement funds and 
certified in lieu funds. Texas proposes to remove the discussion of 
coal refuse disposal sites from 16 TAC section 12.819(a)(2)(C) and add 
a new paragraph Sec.  12.819(c) that is identical to the language of 30 
CFR 879.11(b). The proposed amendment is consistent with the Federal 
counterpart at 30 CFR 879.11.
    Previously, 16 TAC section 12.823(f) stated that all moneys 
received from disposal of land would be deposited in the Texas 
Abandoned Mine Reclamation Fund. In our Part 884 letter, we notified 
Texas that all ``moneys received from the sale of property acquired 
under [section 407 of SMCRA] is disposed of as if it were unused funds 
under 30 CFR 886.20 . . .'' In response, Texas proposes to amend 16 TAC 
section 12.823(f) to state that all moneys received will be returned to 
OSMRE. The proposed amendment is consistent with the Federal 
counterpart at 30 CFR 879.15.
    We find that the proposed regulations are in accordance with SMCRA 
and consistent with Federal regulation. Therefore, we approve the 
amendments.

IV. Summary and Disposition of Comments

Public Comments

    During our public comment period on the amendments, we received two 
anonymous public comments and one named comment. One anonymous comment 
expressed the recommendation that the state of Texas be held liable for 
all the extractive industry damage not covered by the entity 
responsible for the damage and cleanup. We did not take any action 
based on this comment as it was outside the scope of this review. The 
other anonymous comment and the named comment did not contain any 
substantive feedback on the proposed rule.
    None of the comments asked for any changes to the Texas Plan or 
regulations, and no further action by us is required. These comments 
are available in their entirety at www.regulations.gov.

Federal Agency Comments

    Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), on December 11, 
2019, OSMRE solicited comments on the proposed amendments from various 
Federal agencies with an actual or potential interest in the Texas Plan 
(Administrative Record No. TX-0708.01). We did not receive any 
comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    OSMRE solicited EPA's comments on the proposed amendments 
(Administrative Record No. TX-0708.01) on December 11, 2019. The EPA 
did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    OSMRE solicited comments on the proposed amendments from the SHPO 
(Administrative Record No. TX-0708.01) and ACHP (Administrative Record 
No. TX-0708) on December 11, 2019. Neither responded to our request.

V. OSMRE's Decision

    Based on the above findings, we are approving Texas's AML Plan and 
Reclamation Program amendments that were submitted on December 3, 2019 
(Administrative Record No. TX-0708), with the exception described 
above.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 943, which codify decisions concerning the Texas Plan. 
In accordance with the Administrative Procedure Act, this rule will 
take effect 30 days after the date of publication.

VI. Procedural Determinations

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not affect a taking of private property or 
otherwise have taking implications that would result in public property 
being taken for government use without just compensation under the law. 
Therefore, a takings implication assessment is not required. This 
determination is based on an analysis of the corresponding Federal 
regulations.

Executive Orders 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review

    Executive Order (E.O.) 12866, as amended by E.O. 14094, provides 
that the Office of Information and Regulatory Affairs in the Office of 
Management and Budget (OMB) will review all significant rules. Pursuant 
to OMB guidance, dated October 12, 1993, the approval of State program 
amendments is exempted from OMB review under Executive Order 12866. 
Executive Order 13563, which reaffirms and supplements Executive Order 
12866, retains this exemption.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by Section 3(a) of Executive Order 12988. The Department has determined 
that this Federal Register notice meets the criteria of Section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and regulations to minimize litigation, and that 
the agency's legislation and regulations provide a clear legal standard 
for affected conduct, rather than a general standard, and promote 
simplification and burden reduction. Because Section 3 focuses on the 
quality of Federal legislation and regulations, the Department limited 
its review under this Executive Order to the quality of this Federal 
Register notice and to changes to the Federal regulations. The review 
under this Executive Order did not extend to the language of the Texas 
Plan or to the Plan amendment that the State of Texas submitted.

Executive Order 13132--Federalism

    This rule is not a ``[p]olicy that [has] Federalism implications'' 
as defined by Section 1(a) of Executive Order 13132 because it does not 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the

[[Page 64816]]

distribution of power and responsibilities among the various levels of 
government.'' Instead, this rule approves an amendment to the Texas 
Plan submitted and drafted by that State. OSMRE reviewed the submission 
with fundamental federalism principles in mind as set forth in Section 
2 and 3 of the Executive Order and with the principles of cooperative 
federalism as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As 
such, pursuant to the provisions in section 503(a)(1) and (7) (30 
U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the revised Texas Plan to 
ensure that it is ``in accordance with'' the requirements of SMCRA and 
``consistent with'' the regulations issued by the Secretary pursuant to 
SMCRA.

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

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Tribes or on the distribution of 
power and responsibilities between the Federal government and Tribes. 
Therefore, consultation under the Department's Tribal consultation 
policy is not required. The basis for this determination is that our 
decision is on the Texas program, which does not include Indian lands 
or regulation of activities on Indian lands. AML reclamation on Indian 
lands is regulated independently under the applicable, approved Federal 
program or a Tribal AML program.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking that is (1) considered significant 
under Executive Order 12866, as amended by E.O. 14094, 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 significant energy action under the definition 
in Executive Order 13211, a Statement of Energy Effects is not 
required.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. We are not required to 
provide a detailed statement under the National Environmental Policy 
Act of 1969 because this rule qualifies for a categorical exclusion 
under the U.S. Department of the Interior Departmental Manual, part 
516, section 13.5(B)(29).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA; 15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. OMB 
Circular A-119 at p. 14. This action is not subject to the requirements 
of section 12(d) of the NTTAA because application of those requirements 
would be inconsistent with SMCRA.

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.) is not required.

Regulatory Flexibility Act

    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. 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.

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 on an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the corresponding Federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 943

    Intergovernmental relations, Surface mining, Underground mining.

William L. Joseph,
Acting Regional Director, OSMRE IR 3, 4 and 6.

    For the reasons set out in the preamble, 30 CFR part 943 is amended 
as follows:

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 an entry for 
``December 3, 2019'' at the end of the table to read as follows:


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

* * * * *

[[Page 64817]]



----------------------------------------------------------------------------------------------------------------
  Original amendment submission date    Date of final publication               Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
December 3, 2019......................  September 20, 2023.......  Replace AML Plan in response to OSMRE 884
                                                                    Letter. Updates AML Plan to be consistent
                                                                    with changes to Federal program and extends
                                                                    limited liability protection for certain
                                                                    coal and noncoal reclamation projects. 16
                                                                    TAC Texas Administrative Code Sections:
                                                                    12.801; 12.802; 12.803; 12.804; 12.805;
                                                                    12.806; 12.807; 12.808; 12.809; 12.811;
                                                                    12.812; 12.814; 12.815; 12.815; 12.816;
                                                                    12.818; 12.819; 12.820; 12.821; 12.822;
                                                                    12.823.
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[FR Doc. 2023-20018 Filed 9-19-23; 8:45 am]
BILLING CODE 4310-05-P