Utah Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 944

Utah Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Utah regulatory

program (hereinafter referred to as the ``Utah program'') under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA). Utah

proposed revisions to the Utah Coal Mining Rules pertaining to coal

exploration subject to provisions of 43 CFR 3480 through 3487,

responsibilities of the Division of Oil, Gas and Mining (Division)

regarding coal exploration, requirements for coal exploration approval,

notices of intention to conduct minor coal exploration, coal

exploration compliance and required documents to be available in the

exploration area, and performance standards for coal exploration

operations that substantially disturb the natural land surface. Utah

proposed the amendment with the intent of streamlining the Utah

regulatory program and making the exploration process more responsive

to field needs for coal seam information.

EFFECTIVE DATE: September 27, 1994.

FOR FURTHER INFORMATION CONTACT:

Thomas E. Ehmett, telephone: (505) 766-1486.

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program

On January 21, 1981, the Secretary of the Interior conditionally

approved the Utah program for the regulation of coal exploration and

coal mining and reclamation operations on non-Federal and non-Indian

lands. General background information on the Utah program, including

the Secretary's findings, the disposition of comments, and the

conditions of approval of the Utah program can be found in the January

21, 1981, Rederal Register (46 FR 5899). Subsequent actions concerning

Utah's program and program amendments can be found at 30 CFR 944.15,

944.16, and 944.30.

II. Proposed Amendment

By letter dated January 27, 1994, Utah submitted a proposed

amendment to its program pursuant to SMCRA (administrative record No.

UT-888). Utah submitted the proposed amendment at its own initiative.

The provisions of the Utah Coal Mining Rules that Utah proposed to

revise pertain to its coal exploration rules at Utah Administrative

Rule (Utah Admin. R.) 645-200-100, scope of rules for coal exploration;

Utah Admin. R. 645-200-200, responsibilities of the Division; Utah

Admin. R. 645-201-100, requirements for coal exploration approval; Utah

Admin. R. 645-201-200, notices of intention to conduct minor coal

exploration; and Utah Admin. R. 645-202-100, required documents.

OSM announced receipt of the proposed amendment in the February 25,

1994, Federal Register (59 FR 9153), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. UT-897).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on March 28, 1994.

During its review of the amendment, OSM (1) identified concerns

relating to the provisions of the Utah Coal Mining Rules at Utah Admin.

R. 645-202-232, roads and other transportation facilities, and Utah

Admin. R. 645-202-235, disturbance of the hydrologic balance, and (2)

provided editorial comments. OSM notified Utah of the concerns by

letter dated April 15, 1994 (administrative record No. UT-915).

Utah responded in a letter dated May 10, 1994, by submitting a

revised amendment (administrative record No. UT-921). Utah proposed

revisions to Utah Admin. R. 645-200-200, responsibilities; Utah Admin.

R. 645-201-100, responsibilities for coal exploration plan review; Utah

Admin. R. 645-201-200, notices of intention to conduct minor coal

exploration; Utah Admin. R. 645-201-300, major coal exploration

permits; Utah Admin. R. 645-202-100, required documents; and Utah

Admin. R. 645-202-200, performance standards.

OSM announced receipt of the proposed revised amendment in the May

24, 1994, Federal Register (59 FR 26767) and reopened and extended the

public comment period (administrative record No. UT-932). The public

comment period ended on June 8, 1994.

During its review of the revised amendment, OSM identified

additional concerns relating to (1) Utah Admin. R. 645-200-122, 645-

200-123, and 645-201-210, lands designated as unsuitable for surface

coal mining, and (2) Utah Admin. R. 645-202-235, disturbance of the

hydrologic balance. OSM notified Utah of the concerns by letter dated

July 7, 1994 (administrative record No. UT-943).

Utah responded in a letter dated July 11, 1994, by submitting a

revised amendment (administrative record No. UT-950). Utah proposed

revisions to Utah Admin. R. 645-200-100, scope of rules for coal

exploration; Utah Admin. R. 645-201-200, notices of intention to

conduct minor coal exploration; and Utah Admin. R. 645-202-200,

performance standards.

Based upon the additional revisions to the proposed program

amendment submitted by Utah, OSM reopened the public comment period in

the July 29, 1994, Federal Register (59 FR 38578, administrative record

No. UT-956). The public comment period ended on August 15, 1994.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds that the proposed program amendment

submitted by Utah on January 27, 1994, and as revised by it on May 10

and July 11, 1994, is no less effective than the corresponding Federal

regulations.

Accordingly, the Director approves the proposed amendment.

1. Nonsubstantive Revisions to Utah's Coal Mining Rules

Utah proposed revisions to the following previously approved rules

that are nonsubstantive in nature and consist of minor editorial or

grammatical changes (the corresponding Federal regulation provisions

are listed in parentheses):

Utah Admin. R. 645-201-323.100 (30 CFR 772.12(b)(8)(iv)), narrative

description of the proposed exploration area, and

Utah Admin. R. 645-201-342.200 (30 CFR 772.12(d)(2)(ii)), approval or

disapproval of an application for a major coal exploration permit.

Because the proposed revisions to these previously approved rules

are nonsubstantive in nature, the Director finds that the proposed Utah

rules are no less effective than the corresponding Federal regulations.

The Director approves these proposed rules.

2. Substantive Revisions to Utah's Coal Mining Rules That Are

Substantially Identical to the Corresponding Provisions of the Federal

Regulations

Utah proposed revisions to the following rules that are substantive

in nature and contain language that is substantially identical to the

requirements of the corresponding Federal regulation provisions (listed

in parentheses):

Utah Admin. R. 645-200-121 (30 CFR 772.1), coal exploration which is

subject to 43 CFR parts 3480 through 3487,

Utah Admin. R. 645-201-200 through 220 (30 CFR 772.11), notices of

intention to conduct minor coal exploration,

Utah Admin. R. 645-202-100 (30 CFR 815.13), required documents,

Utah Admin. R. 645-202-232 (30 CFR 815.15(b)), performance standards

for roads or other transportation facilities used for coal exploration,

and

Utah Admin. R. 645-202-235 (30 CFR 815.15(i), performance standards

which minimize disturbance of the hydrologic balance.

Because these proposed Utah rules are substantially identical to

the corresponding provisons of the Federal regulations, the Director

finds that they are no less effective than the Federal regulations. The

Director approves these proposed rules.

3. Utah Admin. R. 645-200-122, R. 645-200-123, 645-201-223, and 645-

201-310, Coal Exploration in Relation to an Approved Permit Area

Utah proposed that its rules at Utah Admin. R. 645-200-122, 645-

200-123, 645-201-223, and 645-201-310 setting forth the scope of Utah's

coal exploration rules, would apply to ``coal exploration'' instead of

coal exploration that occurs ``outside an approved permit area'' or

coal exploration that occurs'' ``in relation to an approved permit

area.''

The corresponding Federal regulations at 30 CFR 772.11, for coal

exploration operations removing 250 tons or less of coal, and at 30 CFR

772.12, for coal exploration operations removing more than 250 tons of

coal, apply to coal exploration conducted ``outside a permit area.'' In

promulgating this language, OSM explained in the preamble for these

Federal regulations that a coal exploration permit is not appropriate

for coal exploration on lands covered by a surface coal mining permit

because exploration within the permit area should have been planned as

an integral part of the surface coal mining and reclamation operations

(44 FR 14901, 15017-8; March 13, 1979). The effect of these Federal

regulations is that, for proposed coal exploration within the permit

area, the State regulatory authority would review and approve, as

appropriate, the proposed coal exploration in conjunction with the

review and approval of a permit application, and for coal exploration

outside the permit area, would review and approve the proposed coal

exploration pursuant to the appropriate rules for coal exploration.

Utah's proposed deletions of the phrases concerning approved permit

areas are consistent with OSM's regulations and the rationale for them

in the preamble to the Federal regulations. Therefore, the Director

finds that Utah's proposed revisions to Utah Amin. R. 645-200-122, 645-

200-123, 645-201-223, and 645-201-310 are no less effective than the

corresponding Federal regulations at 30 CFR 772.11 and 772.12. The

Director approves these proposed rules.

4. Utah Admin. R. 645-200-220, 645-200-230, and 645-201-100 through

645-201-130, Responsibilities of the Division and Coal Exploration Plan

Review

Utah proposed revisions to its rules at (1) Utah Admin. R. 645-200-

220 to provide that it is the Division's responsibility to review and

enforce the terms of each notice of intention to conduct coal

exploration; (2) Utah Amin. R. 645-200-230 to provide that it is the

Division's responsibility to review and approve or disapprove major

coal exploration applications and issue, condition, suspend, revoke,

and enforce major coal exploration permits and coordinate with other

government agencies; and (3) Utah Admin. R. 645-201-100 through 645-

201-130 to provide that it is the Division's responsibility to review

coal exploration plans on lands which are not subject to the

requirements of 43 CFR 3480 through 3487, and to provide that, on lands

[Federal lands] where the requirements of 43 CFR 3480 through 3487

apply, the review of coal exploration plans will be guided by the

appropriate part of 43 CFR.

The Federal regulations at 30 CFR part 772 establish the

requirements and procedures applicable to coal exploration operations

on all lands except for Federal lands subject to the requirements of 43

CFR parts 3480 through 3487. The Federal regulations at 43 CFR 3480

through 3487 pertain to operations for the exploration, development,

and production of Federal coal under Federal coal leases, licenses, and

permits, regardless of surface ownership, pursuant to the Mineral

Leasing Act of February 25, 1920, as amended (30 U.S.C. 181, et seq.).

The responsibility for administration of the Mineral Leasing Act is

vested with the Bureau of Land Management.

Utah's proposed revision at Utah Admin. R. 645-201-110 and 645-201-

120 to provide that only coal exploration operations on lands which are

not subject to 43 CFR parts 3480-3487 will be regulated by the Division

is thus an appropriate limitation on the Division's regulatory

authority and is consistent with the corresponding limitation in the

Federal regulations.

In addition, although the specific responsibilities of a State

regulatory authority in administering the coal exploration program

within a State are not addressed in the Federal regulations at 30 CFR

Part 772 for coal exploration, the Federal regulation at 30 CFR

731.14(c)(1) requires each State to have enacted and promulgated laws

and regulations which will allow the State to implement, administer,

and enforce its program, and to regulate coal exploration and surface

coal mining and reclamation operations in accordance with SMCRA. Utah's

proposed regulations at Utah Admin. R. 645-200-220 and 645-200-230,

specifying the regulatory responsibilities of the Division, are thus

consistent with the requirements of 30 CFR 731.14(c)(1).

Therefore, based on the foregoing discussion, the Director finds

that Utah Admin. R. 645-200-220, 645-200-230, and 645-201-100 through

645-201-130 are not inconsistent with the Federal regulations at 30 CFR

Part 772. The Director approves these proposed rules.

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's response to

them.

1. Public Comments

OSM invited public comments on the proposed amendment

(administrative record No. UT-891), but none were received.

2. Federal Agency Comments

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Utah program.

In separate telephone conversations on February 11, June 1, and

July 29, 1994, the Bureau of Mines stated it had no comments on the

proposed amendment (administrative record Nos. UT-893, UT-933, and UT-

965).

The U.S. Fish and Wildlife Service responded by letter dated March

7, 1994, that it found nothing of significant concern to the agency and

again, by letters dated June 8 and August 9, 1994, that it had reviewed

the proposed changes and had no comment on them (administrative record

Nos. UT-901, UT-937, and UT-960).

By letters dated March 23 and August 29, 1994, the Mine Safety and

Health Administration (MSHA) stated that it had reviewed the amendment

and that there appeared to be no conflict with the requirements of 30

CFR (administrative record No. UT-904).

The U.S. Army Corps of Engineers responded by letters dated June 6

and August 10, 1994, that it found the changes to be satisfactory

(administrative record Nos. UT-934 and UT-962).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated 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 Utah proposed to make in its amendment

pertained to air or water quality standards. Therefore, OSM did not

request EPA's concurrence with the proposed amendment. However,

pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (administrative record No. UT-891). EPA

responded by letters dated February 15 and June 8, 1994 (administrative

record Nos. UT-894 and UT-936), that it had no comments on the proposed

amendment and that it did not believe there would be any impacts to

water quality standards promulgated under authority of the Clean Water

Act, as amended (33 U.S.C. 1251 et seq.).

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (administrative record No.

UT-891). By letter dated August 4, 1994, the SHPO indicated, after

review of Utah Admin. R. 645-202-300, that it concurred with the

content of the rule and OSM's determination of no effect with respect

to the consultation requirements of 36 CFR Part 800 (administrative

record No. UT-959). The ACHP did not respond to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves Utah's proposed

amendment as submitted on January 27, 1994, and revised on May 10 and

July 11, 1994. The Director approves, as discussed in: Finding No. 1,

Utah Admin. R. 645-201-323.100, concerning the narrative description of

the proposed exploration area, and Utah Admin. R. 645-201-342.200,

concerning approval or disapproval of an application for a major coal

exploration permit; finding No. 2, Utah Admin. R. 645-200-121,

concerning coal exploration which is subject to 43 CFR Parts 3480

through 3487, Utah Admin. R. 645-201-200 through 220, concerning,

notices of intention to conduct minor coal exploration, Utah Admin. R.

645-202-100, concerning required documents, Utah Admin. R. 645-202-232,

concerning performance standards for roads or other transportation

facilities used for coal exploration, and Utah Admin. R. 645-202-235,

concerning performance standards which minimize disturbance of the

hydrologic balance; finding No. 3, Utah Admin. R. 645-200-122, 645-200-

123, 645-201-223, and 645-201-310, concerning coal exploration in

relation to an approved permit area; and finding No. 4, Utah Admin. R.

645-200-220, 645-200-230, and 645-201-100 through 645-201-130,

concerning the Division's responsibilities and coal exploration plan

review.

The Federal regulations at 30 CFR Part 944, codifying decisions

concerning the Utah program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12886 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) 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 since each such 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 12550) 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 State 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.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

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)).

4. 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.).

5. Regulatory Flexibility Act

The Department of the Interior has determined 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. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. 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.

VII. List of Subjects in 30 CFR 944

Intergovernmental relations, Surface mining, Underground mining.

Dated: September 19, 1994.

Russell F. Price,

Acting Assistant Director, Western Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 944--UTAH

1. The authority citation for Part 944 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 944.15 is amended by adding paragraph (aa) to read as

follows:

Sec. 944.15 Approval of amendments to State regulatory program.

* * * * *

(aa) Revisions to the following Utah Coal Mining Rules, as

submitted to OSM on January 27, 1994, and as revised on May 10 and July

11, 1994, are approved effective September 27, 1994:

645-200-121, 122, and 123, Coal Exploration Categories.

645-200-220, and 230, Division Responsibilities.

645-201-100 through 130, Responsibilities for Coal Exploration Plan

Review.

645-201-200 through 220 and 223, Notices of Intention to Conduct

Minor Coal Exploration.

645-201-310, Major Coal Exploration Permits.

645-201-323.100, Narrative Description of the Proposed Exploration

Area.

645-201-342.200, Approval or Disapproval of an Application for a

Major Coal Exploration Permit.

645-202-100, Required Documents.

645-202-232, Performance Standards for Roads or Other Transportation

Facilities Used for Coal Exploration.

645-202-235, Performance Standards which Minimize Disturbance of the

Hydrologic Balance.

[FR Doc. 94-23823 Filed 9-26-94; 8:45 am]

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