Texas Register, Volume 28, Number 14, Pages 2821-2988, April 4, 2003 Page: 2,842
2821-2988 p. ; 28 cm.View a full description of this periodical.
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(vi) the closing date of the comment period, which
must be a minimum of 30 days after the publication date of the notice;
(vii) a statement that interested persons may obtain
a 30-day extension of the comment period upon request; and
(viii) the name and address of the Commission office
where a copy of the request is available for public inspection and to
which comments and requests for extension of the comment period
should be sent.
(B) The Commission must promptly provide a copy of
the notice required under subparagraph (A) of this paragraph to:
(i) all reasonably locatable owners of surface and
mineral estates in the land included in the request; and
(ii) the owner of the feature causing the land to come
under the protection of 12.71(a) of this title, and, when applicable,
the agency with primary jurisdiction over the feature with respect to
the values causing the land to come under the protection of 12.71(a)
of this title. For example, both the landowner and the State Historic
Preservation Officer must be notified if surface coal mining operations
would adversely impact any site listed on the National Register of His-
toric Places. As another example, both the surface owner and the Na-
tional Park Service must be notified if the request includes non-federal
lands within the authorized boundaries of a unit of the National Park
System.
(C) The letter transmitting the notice required under
subparagraph (B) of this paragraph must provide a 30-day comment
period, starting from the date of service of the letter, and specify
that another 30 days is available upon request. At its discretion, the
Commission may grant additional time for good cause upon request.
The Commission need not necessarily consider comments received
after the closing date of the comment period.
(5) How a decision will be made.
(A) Procedure. The Commission must review the ma-
terials submitted under paragraph (2) of this subsection, comments re-
ceived under paragraph (4) of this subsection, and any other relevant,
reasonably available information to determine whether the record is
sufficiently complete and adequate to support a decision on the merits
of the request. If not, the Commission must notify the applicant in writ-
ing, explaining the inadequacy of the record and requesting submittal,
within a specified reasonable time, of any additional information that
the agency deems necessary to remedy the inadequacy.
(B) Determination. Once the record is complete and
adequate, the Commission must determine whether the applicant has
demonstrated valid existing rights. The decision document must ex-
plain how the applicant has or has not satisfied all applicable elements
of the definition of "valid existing rights" in 12.3(187) of this title. It
must contain findings of fact and conclusions, and it must specify the
reasons for the conclusions.
(C) Impact of property rights disagreements. This sub-
paragraph applies only when the request relies upon one or more of the
standards in the definition of "valid existing rights" in 12.3(187)(B),
(C)(i) and (C)(ii) of this title.
(i) The Commission must issue a determination that
the applicant has not demonstrated valid existing rights if those prop-
erty rights claims are the subject of pending litigation in a court or ad-
ministrative body with jurisdiction over the property rights in ques-
tion. The Commission will make this determination without preju-
dice, meaning that an applicant may refile the request once the propertyrights dispute is finally adjudicated. This clause applies only to situa-
tions in which legal action has been initiated as of the closing date of
the comment period under paragraph (4)(A) or (C) of this subsection.
(ii) If the record indicates disagreement as to the ac-
curacy of property rights claims, but this disagreement is not the sub-
ject of pending litigation in a court or administrative agency of compe-
tent jurisdiction, the Commission must evaluate the merits of the infor-
mation in the record and determine whether the applicant has demon-
strated that the requisite property rights exist under the definition of
"valid existing rights" in 12.3(187)(A), (C)(i) or (C)(ii) of this title,
as appropriate. The Commission must then proceed with the decision
process under subparagraph (B) of this paragraph.
(D) Default determination. The Commission must is-
sue a determination that an applicant has not demonstrated valid exist-
ing rights if the information that is requested under paragraph (3)(B)
of this subsection or subparagraph (A) of this paragraph has not been
submitted within the time specified or as subsequently extended. The
Commission will make this determination without prejudice, meaning
that the applicant may refile a revised request at any time.
(E) Notice after decision. After making a determina-
tion, the Commission must:
(i) provide a copy of the determination, together
with an explanation of appeal rights and procedures, to the applicant, to
the owner or owners of the land to which the determination applies, to
the owner of the feature causing the land to come under the protection
of 12.71(a) of this title, and, when applicable, to the agency with
primary jurisdiction over the feature with respect to the values that
caused the land to come under the protection of 12.71(a) of this title;
and
(ii) publish notice of the determination in a newspa-
per of general circulation in the county in which the land is located.
Alternatively, the Commission may require that the applicant publish
this notice and provide a copy of the published notice to the Commis-
sion.
(6) Administrative and judicial review. A determination
that an applicant has or does not have valid existing rights is subject to
administrative and judicial review under 12.222 and 12.223 of this
title (relating to Administrative Review and Judicial Review).
(7) Availability of records. The Commission must make
a copy of that request available to the public in the same manner as it
must make permit applications available to the public under 12.210 of
this title (relating to Public Availability of Information in Permit Appli-
cations On File With the Commission). In addition, the Commission
must make records associated with that request, and any subsequent
determination under paragraph (5) of this subsection, available to the
public in accordance with the requirements and procedures of 12.672
of this title (relating to Availability of Records).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal author-
ity to adopt.
Filed with the Office of the Secretary of State on March 20, 2003.
TRD-200301846
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-129528 TexReg 2842 April 4, 2003 Texas Register
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Texas. Secretary of State. Texas Register, Volume 28, Number 14, Pages 2821-2988, April 4, 2003, periodical, April 4, 2003; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth101027/m1/21/: accessed June 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.