Texas Regulatory Program
| Published date | 20 November 2019 |
| Citation | 84 FR 64019 |
| Record Number | 2019-25186 |
| Section | Rules and Regulations |
| Court | Surface Mining Reclamation And Enforcement Office |
Federal Register, Volume 84 Issue 224 (Wednesday, November 20, 2019)
[Federal Register Volume 84, Number 224 (Wednesday, November 20, 2019)]
[Rules and Regulations]
[Pages 64019-64022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25186]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[SATS No. TX-068-FOR; Docket ID: OSM-2018-0002; S1D1S SS08011000
SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS501520]
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
(OSMRE), 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 program
regarding annual permit fees for calendar years 2017 and 2018. Texas
also proposed to remove a restriction in its rules that conflicts with
the United States Bankruptcy Code.
DATES: The effective date is December 20, 2019.
FOR FURTHER INFORMATION CONTACT: William Joseph, 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
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
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 program includes, among other things, State laws and regulations
that govern surface coal mining and reclamation operations in
accordance with the Act and consistent with the Federal regulations.
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 of the Texas program in the
February 27, 1980, Federal Register (45 FR 12998). You can also find
later actions concerning the Texas program and program amendments at 30
CFR 943.10, 943.15 and 943.16.
II. Submission of the Amendment
By letter dated February 7, 2018 (Administrative Record No. TX-
706), Texas sent us an amendment to its program under SMCRA (30 U.S.C.
1201 et seq.) at its own initiative.
We announced receipt of the proposed amendment in the August 29,
2018, Federal Register (83 FR 44012). 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 28, 2018. We received three public
comments (Administrative Record No. TX-706-03) that are addressed in
the Public Comments section of part IV, Summary and Disposition of
Comments, below.
III. OSMRE's Findings
We are approving the amendment as described below. The following
are findings we made concerning Texas's amendment under SMCRA and the
Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we
do not specifically discuss below concerning non-substantive wording or
editorial changes can be found in the full text of the program
amendment available at https://www.regulations.gov.
A. 16 Texas Administrative Code--Section 12.108. Permit Fees
Texas proposed revising its regulations at Texas Administrative
Code (TAC), Title 16, section 12.108(b), regarding annual permit fees
by:
(1) Amending the calendar years specified in paragraph (b) to
calendar years 2017 and 2018;
[[Page 64020]]
(2) Decreasing the amount of the fee, from $13.05 to $12.85, for
each acre of land within a permit area covered by a reclamation bond on
December 31 of the year; and
(3) Decreasing the amount of the fee, from $6,600 to $6,170, for
each permit in effect on December 31 of the year.
Texas fully funds its share of costs to regulate the coal mining
industry with fees paid by the coal industry. To meet these costs,
Texas charges a permit application fee and two annual fees, as
mentioned above. The proposed fee revisions are intended to provide
adequate funding to pay the State's cost of operating its regulatory
program while continuing to provide incentives for industry to
accomplish reclamation and achieve bond release as quickly as possible.
We find that Texas's proposed fee changes are consistent with the
discretionary authority provided by the Federal regulation at 30 CFR
777.17. The Federal regulations allow the regulatory authority to
determine the fee for an application for a surface coal mining and
reclamation permit as long as the fee does not exceed the actual or
anticipated cost of reviewing, administering, and enforcing the permit.
Texas has determined that the permit fees assessed do not exceed the
actual or anticipated cost of reviewing, administering, and enforcing
the permit. This is evident as Texas is requesting a decrease in the
fees previously assessed based on an assessment of the cost to review,
administer, and enforce Texas permits. Therefore, we are approving
Texas's revision as it is no less effective than the Federal
regulations.
B. 16 Texas Administrative Code--Section 12.309. Terms and Conditions
of the Bond
Texas proposed to revise its regulation at Texas Administrative
Code (TAC), Title 16, section 12.309(j)(2)(B), by:
(1) Removing the condition that self-bond applicants must not have
been subject to bankruptcy proceedings during the 5-year period
immediately preceding the date of application.
Texas proposed this revision to conform to the self-bonding
regulations at 30 CFR 800.23(b) and the United States Bankruptcy Code
protections against discriminatory treatment for debtors at 11 U.S.C.
525(a). The regulations at 30 CFR 800.23(b) have no requirement that
the self-bond applicant must not have been subject to a bankruptcy
proceeding. This provision was within the approved Texas program and
deemed to be more stringent than SMCRA or more effective than the
regulations thereunder. However, based upon the provisions of 11 U.S.C.
525, discriminating against a self-bond applicant on the basis of
participation in a bankruptcy proceeding is not permissible. Therefore,
Texas proposed to remove this requirement from its approved program.
The provisions of proposed 16 TAC section 12.309(j)(2)(B) mirror
the provisions of 30 CFR 800.23(b)(2) that require the applicant for a
self-bond to have been in continuous operation as a business entity for
a period of not less than five years immediately preceding the time of
application. The Texas proposed amendment also mirrors the provisions
of 30 CFR 800.23(b)(2)(i) that allow a joint venture or syndicate with
less than five years of continuous operation to qualify under the
requirement of 30 CFR 800.23(b)(2) if each member of the joint venture
or syndicate has been in continuous operations for at least five years
immediately preceding the time of application. Therefore, the removal
of the provision precluding consideration of and reference to
bankruptcy provisions renders the Texas regulations consistent with the
OSMRE self-bonding regulations at 30 CFR 800.23(b).
Additionally, the proposed amendment is conformity with the broad
provisions of the United States Bankruptcy Code section 525(a) that
forbid a governmental unit from discriminating against a person that
has been a debtor or associated with a debtor. This prohibition extends
only to discrimination or other action based solely on the basis of the
bankruptcy, on the basis of the insolvency, before or during bankruptcy
prior to determination of discharge, or on the basis of nonpayment of a
debt discharged in the bankruptcy case. Therefore, we find that Texas's
proposed amendment renders its rules or regulations no less effective
than the Federal self-bonding regulations found at 30 CFR 800.23(b) and
we are approving Texas's revision.
Effective Date
The Texas regulatory authority's February 7, 2018, letter suggests
that the proposed rule changes were effective November 23, 2015;
December 25, 2017; and April 25, 2017. A state program amendment is not
effective until approved by OSMRE. 30 CFR 732.17(g); see also U.S. v.
E&C Coal Co., Inc., 846 F.2d 247, 249 (4th Cir. 1988). The approved
amendments will become effective on the date specified in this
document.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment. As noted in Section
II, we received three comments (Administrative Record No. TX-706-03).
The comments related to the Security Exchange commission, global
warming, and radioactive free steel. The three comments were outside
the scope of the proposed amendment and not germane to the topic of
surface coal mining in general. We are not addressing these comments in
this final rule for these reasons. These comments are available in
their entirety at https://www.regulations.gov.
Federal Agency Comments
On March 21, 2018, pursuant to 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-706-02). 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 receive 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 March 21, 2018, under 30 CFR 732.17(h)(11)(i),
we requested comments from the EPA on the amendment (Administrative
Record No. TX-706-02). The EPA provided no comments and 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 March 21, 2018, we requested comments on the amendment
(Administrative Record No. TX-706-02). We did not receive any comments.
V. OSMRE's Decision
Based on the above finding, we are approving the Texas amendment
that
[[Page 64021]]
was submitted on February 7, 2018 (Administrative Record No. TX-706).
To implement this decision, we are amending the Federal regulations
at 30 CFR part 943 that codify decisions concerning the Texas program.
In accordance with the Administrative Procedure Act (5 U.S.C. 553),
this rule will take effect 30 days after the date of publication.
Section 503(a) of SMCRA (30 U.S.C. 1253(a)) requires that the State's
program must demonstrate that the State has the capability of carrying
out the provisions of the Act and meeting its purposes. SMCRA requires
consistency of State and Federal standards.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not effect 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 Order 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review
Executive Order 12866 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 13771--Reducing Regulation and Controlling Regulatory
Costs
State program amendments are not regulatory actions under Executive
Order 13771 because they are exempt from review under Executive Order
12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by Section 3 of Executive Order 12988. The Department has determined
that this Federal Register document meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
reviews its legislation and regulations to eliminate drafting errors
and ambiguity; that the agency write 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 document and to changes
to the Federal regulations. The review under this Executive Order did
not extend to the language of the State regulatory program or to the
program amendment that the State of Texas drafted.
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 distribution
of power and responsibilities among the various levels of government.''
Instead, this rule approves an amendment to the Texas program 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 section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and
(7)), OSMRE reviewed the program amendment 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 that does not include Tribal lands or
regulation of activities on Tribal lands. Tribal lands are regulated
independently under the applicable, approved Federal 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, 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
a significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866; and this action does not address environmental
health or safety risks disproportionately affecting children.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the U.S. Department of the
Interior Departmental Manual, part 516, section 13.5(A), State program
amendments are not major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (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
[[Page 64022]]
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 Texas 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.
Dated: September 9, 2019.
Alfred L. Clayborne,
Regional Director, Mid-Continent Region.
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 an entry for ``16
Texas Administrative Code--Section 12.108, related to permit fees; and
Section 12.309, related to self-bonding applications'' 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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* * * * * * *
February 7, 2018............... 11/20/2019 16 Texas Administrative
Code--Section 12.108,
related to permit
fees; and Section
12.309, related to
self-bonding
applications.
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[FR Doc. 2019-25186 Filed 11-19-19; 8:45 am]
BILLING CODE 4310-05-P
