[Federal Register: November 5, 2003 (Volume 68, Number 214)]
[Rules and Regulations]
[Page 62517-62519]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05no03-8]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[TX-50-FOR]
Texas Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are approving an amendment to the Texas regulatory program
(Texas program) under the Surface Mining Control and Reclamation Act of
1977 (SMCRA or the Act). Texas proposed revisions to its regulations
regarding permit fees. Texas intends to revise its program to improve
operational efficiency.
EFFECTIVE DATE: November 5, 2003.
FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa
Field Office. Telephone: (918) 581-6430. Internet address: mwolfrom@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Texas Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Texas Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Texas program effective February 16, 1980.
You can find background information on the Texas program, including the
Secretary's findings, the disposition of comments, and the conditions
of approval, in the February 27, 1980, Federal Register (45 FR 12998).
You can find later actions on the Texas program at 30 CFR 943.10,
943.15, and 943.16.
II. Submission of the Amendment
By letter dated July 10, 2003 (Administrative Record No. TX-655),
Texas sent us an amendment to its program under SMCRA (30 U.S.C. 1201
et seq.). Texas sent the amendment at its own initiative.
We announced receipt of the proposed amendment in the August 15,
2003, Federal Register (68 FR 48844). 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 September 15, 2003. We did not receive any
public comments.
During our review of the amendment, we identified concerns about
the proposed annual fee. We notified Texas of these concerns by letters
dated August 22, 2003, and September 15, 2003 (Administrative Record
Nos. TX-655.03 and TX-655.05, respectively). By letters dated September
4, 2003, and September 24, 2003 (Administrative Record Nos. TX-655.04
and TX-655.06, respectively), Texas sent us additional explanatory
information to its proposed program amendment. Because the additional
information merely clarified certain provisions of Texas' amendment, we
did not reopen the public comment period.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment as described
[[Page 62518]]
below. Any revisions that we do not specifically discuss below concern
nonsubstantive wording or editorial changes.
16 Texas Administrative Code (TAC) Section 12.108 Permit Fees
In paragraph (b), Texas proposed to increase the annual permit fee
from $120.00 per acre to $300.00 per acre. Permittees must pay the fee
to the Commission for each acre of land within the permit area on which
the permittees actually conducted operations for the removal of coal
and lignite during the calendar year. Because this increased fee had an
effective date of September 1, 2003, Texas also proposed how it is to
be calculated for calendar year 2003 only. For the period January 1,
2003, through August 31, 2003, the annual permit fee is $120.00 per
acre and for the period September 1, 2003, through December 31, 2003,
the fee is $300.00 per acre.
The Federal regulations at 30 CFR 777.17, concerning permit fees,
provide that applications for surface coal mining permits must be
accompanied by a fee determined by the regulatory authority. The
Federal regulations also provide that the fees may be less than, but
not more than the actual or anticipated cost of reviewing,
administering, and enforcing the permit. The annual permit fee increase
proposed by Texas is the first such increase since the provision in the
Texas Surface Coal Mining and Reclamation Act that authorizes the
Commission to set the fee became effective September 1, 1985. We find
that Texas' proposed permit fees including the annual permit fee are
reasonable and consistent with the discretionary authority provided by
the regulations at 30 CFR 777.17.
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 July 25, 2003, under 30 CFR 732.17(h)(11)(i) and section 503(b)
of SMCRA, we requested comments on the amendment from various Federal
agencies with an actual or potential interest in the Texas program
(Administrative Record No. TX-655.01). We did not receive any comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.). None of the revisions that Texas proposed to make
in this amendment pertain to air or water quality standards. Therefore,
we did not ask EPA to concur on the amendment. However, on July 25,
2003, under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from the EPA (Administrative Record No. TX-655.01). The EPA
did not respond to our request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On July 25, 2003, we requested comments on Texas' amendment
(Administrative Record No. TX-655.01), but neither responded to our
request.
V. OSM's Decision
Based on the above findings, we approve the amendment Texas sent us
on July 10, 2003.
We approve 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.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 943, which codify decisions concerning the Texas
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this rule effective immediately will expedite that
process. SMCRA requires consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR Parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
This determination is based on the fact that the Texas program does not
regulate coal exploration and surface coal mining and reclamation
operations on Indian lands. Therefore, the Texas
[[Page 62519]]
program 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 Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation was not considered a
major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 943
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 16, 2003.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
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 943.15 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 Date of final publication Citation/description
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* * * * * * *
July 10, 2003.......................... November 5, 2003................. TAC 12.108(b)
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[FR Doc. 03-27877 Filed 11-4-03; 8:45 am]
BILLING CODE 4310-05-P