Utah Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944

Utah Permanent Regulatory Program

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

Interior.

ACTION: Final rule; approval of proposed amendment.

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SUMMARY: OSM is announcing its decision to approve an amendment to the

approved Utah permanent regulatory program (the Utah program) under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C.

1201-1328. The amendment consists of changes to provisions of the Utah

Coal Mining Rules pertaining to the definitions of ``affected area,''

``road,'' and ``public road.'' The amendment revises the Utah program

to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: April 7, 1994.

FOR FURTHER INFORMATION CONTACT: Robert H. Hagen, Telephone (505) 766-

1486.

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program

II. Submission of Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

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 an

explanation of the conditions of approval, appears in the January 21,

1981, Federal Register (46 FR 5899). Actions taken subsequent to

approval of the Utah program are codified at 30 CFR 944.15, 944.16, and

944.30.

II. Submission of Proposed Amendment

By letter dated September 17, 1992 (administrative record No. UT-

782), Utah submitted to OSM, under SMCRA and the Federal regulations

implementing SMCRA at 30 CFR chapter VII (the Federal regulations), a

proposed amendment to the Utah program. Utah submitted the proposed

amendment in response to a September 4, 1992, agreement (administrative

record No. UT-778) between Utah and OSM concerning the regulation of

coal mine access and haul roads (mine roads) in Utah and as required by

OSM at 30 CFR 944.16 (n) and (o). The proposed amendment consists of

revised definitions of the terms ``affected area,'' ``road,'' and

``public road'' at Utah Administrative Rule (Utah Admin. R.) 645-100-

200.

OSM announced receipt of the proposed amendment in the November 16,

1992, Federal Register (57 FR 54032), and, in the same notice, opened

the public comment period and offered to hold a hearing on the

substantive adequacy of the proposed amendment (administrative record

No. UT-800). The public comment period closed on December 16, 1992.

Following the close of the comment period and during its review of

the proposed amendment, OSM identified certain concerns regarding

whether the proposed amendment was, as required by 30 CFR 732.15(a), in

accordance with SMCRA and consistent with the Federal regulations. OSM

notified Utah of these concerns by letter dated January 21, 1993

(administrative record No. UT-817).

By letter dated February 16, 1993, Utah submitted to OSM additional

material, including a revision to the proposed amendment

(administrative record No. UT-824). However, OSM identified certain

concerns with this revision and notified Utah of these concerns by

telephone on March 4, 1993 (administrative record No. UT-825).

By letter dated March 24, 1993, Utah submitted to OSM additional

revisions to the proposed amendment (administrative record No. UT-827).

OSM announced receipt of the March 24, 1993, revisions to the

proposed amendment in the April 8, 1993, Federal Register (58 FR

18187), and, in the same notice, reopened the public comment period on

the revised proposed amendment (administrative record No. UT-830). The

comment period ended on April 23, 1993.

By letter to Utah dated May 19, 1993 (administrative record No. UT-

842), OSM found that provision II.1 of the September 4, 1992, agreement

was not valid. In addition, OSM qualified the applicability of

provision II.2 of the same agreement.

By letter dated June 22, 1993 (administrative record No. UT-847),

Utah responded to OSM's May 19, 1993, letter and stated its

interpretation of and intentions with respect to the September 4, 1992,

agreement.

By letter dated July 1, 1993 (administrative record No. UT-845),

the Joint National Coal Association/American Mining Congress Committee

on Surface Mining Regulations requested that OSM reopen the comment

period for Utah's proposed amendment to allow additional public comment

on the effect of OSM's May 19, 1993, letter on the September 4, 1992,

agreement and the proposed amendment.

OSM published a notice in the July 29, 1993, Federal Register (58

FR 40608) reopening and extending the public comment period to allow

the public the opportunity to comment on the effect that the invalid

part of the September 4, 1992, agreement would have on Utah's proposed

amendment (administrative record No. UT-850). The extended public

comment period ended on August 13, 1993. The proposed amendment, as

revised on March 24, 1993, is the subject of this notice.

III. Director's Findings

After a thorough review, pursuant to SMCRA and the Federal

regulations at 30 CFR 732.15 and 732.17, the Director finds that Utah's

proposed amendment to its definitions of ``affected area,'' ``road,''

and ``public road,'' as submitted by Utah on September 17, 1992, and as

revised by it on March 24, 1993, is no less stringent than SMCRA and no

less effective than the Federal regulations.

A. Background on Proposed Amendment

On February 25, 1991, Utah adopted certain revisions to its

definitions of ``road'' and ``public road'' at Utah Admin. R. 645-100-

200, along with a supplemental policy statement. On March 1, 1991,

Utah, as required by 30 CFR 732.17, submitted those revisions and the

supplemental policy statement to OSM for approval (administrative

record No. UT-610).

OSM did not approve in part the March 1, 1991, submittal in a final

rule published in the Federal Register (56 FR 58846, November 22, 1991)

(the final roads rule). In the final roads rule, OSM found that the

definition of ``surface coal mining operations'' at section 701(28) of

SMCRA, 30 U.S.C. 1291(28), and its counterpart in the Utah program

require the regulation of certain public roads (56 FR 58846, 68847-49,

November 22, 1991). OSM also found that, when determining whether a

road is subject to regulation under SMCRA and the Utah program, the

regulatory authority must consider the extent and effect of the mining-

related use of the road (56 FR 58846, 58847-49, 58851-52, 58854-55,

November 22, 1991). Based on these findings, OSM did not approve Utah's

revision to its definition of ``road'' and its supplemental policy

statement because, when considered together, they would have exempted

all public roads from regulation, regardless of their mining-related

use (56 FR 58846, 58847-49, November 22, 1991). OSM approved Utah's

revision to its definition of ``public road,'' but only in the limited

context of the rules in the Utah program for designating lands

unsuitable for mining (56 FR 58846, 58849-50, November 22, 1991). OSM

also required Utah to make certain amendments to its regulatory

definitions of ``road'' and ``public road'' and to withdraw its

supplemental policy statement (56 FR 58846, 58857-58, November 22,

1992.) These required program amendments are codified at 30 CFR 944.16

(n) and (o).

On January 17, 1992, Utah brought an action in the U.S. District

Court for the District of Utah, pursuant to section 526 of SMCRA, for

judicial review of the final roads rule (Utah v. Lujan, No. 92-C-063-G

(D. Utah)). On September 4, 1992, OSM and Utah resolved Utah v. Lujan

by entering into an agreement (the September 4, 1992, agreement). Under

the September 4, 1992, agreement, Utah agreed, among other things, to

withdraw its claims in Utah v. Lujan, confirm the withdrawal, effective

December 5, 1991, from the Utah program of its supplemental policy

statement, and to submit to OSM a proposed amendment to the Utah

program that would revise the definitions of ``affected area,''

``road,'' and ``public road'' at Utah Admin. R. 645-100-200 to read the

same as the corresponding definitions in the Federal regulations at 30

CFR 701.5 and 761.5. For its part, OSM agreed to a blanket exemption of

certain Utah mine roads from regulation under SMCRA and the Utah

program.

Pursuant to the September 4, 1992, agreement, Utah filed a motion

with the district court to dismiss Utah v. Lujan. However, Utah did not

submit the agreement to the court for review or approval. On September

24, 1992, the court granted Utah's motion and dismissed the case with

prejudice. Also pursuant to the agreement, Utah submitted to OSM the

proposed amendment that is the subject of this notice. Subsequently,

OSM sent to Utah a letter dated May 19, 1993, invalidating the

September 4, 1992, agreement to the extent that it exempted certain

mine roads existing on September 4, 1992, from regulation under SMCRA

(administrative record No. UT-842).

B. Description of Proposed Amendment

As noted above, Utah proposed to revise its definitions of

``affected area,'' ``road,'' and ``public road'' at Utah Admin. R. 645-

100-200. Specifically, Utah proposed to revise its definition of

``affected area'' as follows, with the italicized language to be added:

``Affected area'' means any land or water surface area which is

used to facilitate, or is physically altered by, coal mining and

reclamation operations. The affected area includes the disturbed

area; any area upon which coal mining and reclamation operations are

conducted; any adjacent lands the use of which is incidental to coal

mining and reclamation operations; all areas covered by new or

existing roads used to gain access to, or for hauling coal to or

from, coal mining and reclamation operations, except as provided in

this definition; any area covered by surface excavations, workings,

impoundments, dams, ventilation shafts, entryways, refuse banks,

dumps, stockpiles, overburden piles, spoil banks, culm banks,

tailings, holes or depressions, repair areas, storage areas,

shipping areas; any areas upon which are sited structures,

facilities, or other property material on the surface resulting

from, or incident to, coal mining and reclamation operations; and

the area located above underground workings. The affected area shall

include every road used for purposes of access to, or for hauling

coal to or from, coal mining and reclamation operations, unless the

road (a) was designated as a public road pursuant to the laws of the

jurisdiction in which it is located; (b) is maintained with public

funds and constructed in a manner similar to other public roads of

the same classification within the jurisdiction; and (c) there is

substantial (more than incidental) public use. Editorial Note: The

definition of Affected area, insofar as it excludes roads which are

included in the definition of Surface coal mining operations, was

suspended at 51 FR 41960, Nov. 20, 1986. Accordingly, Utah suspends

the definition of Affected Area insofar as it excludes roads which

are included in the definition of ``coal mining and reclamation

operations.''

Utah proposed to revise its definition of ``road'' as follows, with

the capitalized language in brackets to be removed and the italicized

language to be added:

``Road'' means a surface right-of-way for purposes of travel by

land vehicles used in [COAL EXPLORATION OR] coal mining and

reclamation operations or coal exploration. A road consists of the

entire area within the right-of-way, including the roadbed,

shoulders, parking and side areas, approaches, structures, ditches,

and surface. The term includes access and haulroads constructed,

used, reconstructed, improved, or maintained for use in [COAL

EXPLORATION, OR WITHIN THE AFFECTED AREA OF] coal mining and

reclamation operations or coal exploration, including use by coal

hauling vehicles [LEADING] to and from transfer, processing, or

storage areas. The term does not include [ROADS] ramps and routes of

travel within the immediate mining [PIT] area or within spoil or

coal mine waste disposal areas.

Finally, Utah proposed to revise its definition of ``public road''

as follows, with the capitalized language in brackets to be removed and

the italicized language to be added:

``Public road'', for the purposes of part R645-103-200, R645-

301-521.123, and R645-301-521.133 means a road (a) which has been

designated as a public road pursuant to the laws of the jurisdiction

in which it is located [,]; (b) which is maintained with public

funds in a manner similar to other public roads of the same

classification within the jurisdiction [, AND]; (c) for which there

is substantial (more than incidental) public use; and (d) which

meets road classification standards for other public roads of the

same classification in the local jurisdiction.

C. Specific Findings

For the following reasons, OSM finds that Utah's proposed amendment

to its definitions of ``affected area,'' ``road,'' and ``public road''

at Utah Admin. R. 645-100-200 is in accordance with SMCRA and

consistent with the Federal regulations. OSM finds that, except for

some differences in wording, Utah's proposed amendment to its

definitions of ``affected area,'' ``road,'' and ``public road'' at Utah

Admin. R. 645-100-200 is substantively identical to the corresponding

Federal definitions of ``affected area'' and ``road'' at 30 CFR 701.5

and ``public road'' at 30 CFR 761.5. As discussed below, these

differences in wording are necessary to maintain consistency throughout

Utah's regulations and make the proposed amendment conform to the Utah

program.

1. Definition of ``Affected Area''

As noted above, Utah's proposed amendment to its definition of

``affected area'' at Utah Admin. R. 645-100-200 states, in part, as

follows:

Editorial Note: The definition of Affected area, insofar as it

excludes roads which are included in the definition of Surface coal

mining operations, was suspended at 51 FR 41960, Nov. 20, 1986.

Accordingly, Utah suspends the definition of Affected Area insofar

as it excludes roads which are included in the definition of ``coal

mining and reclamation operations.''

In this note, Utah suspended its definition of ``affected area''

insofar as it excluded roads that were included in the definition of

``coal mining and reclamation operations'' at Utah Admin. R. 645-100-

200. This is consistent with the November 20, 1986, partial suspension

of the Federal definition of ``affected area'' (51 FR 41960).

A difference between Utah's proposed definition of ``affected

area'' and its Federal regulatory counterpart is that Utah's proposed

definition of ``affected area'' uses the term ``coal mining and

reclamation operations, '' while the Federal definition of ``affected

area'' uses the term ``surface coal mining and reclamation

operations.'' This difference, however, is not substantive. The Utah

regulatory term ``coal mining and reclamation operations,'' as defined

at Utah Admin. R. 645-100-200, is substantively identical to the

Federal regulatory term ``surface coal mining operations,'' as defined

at 30 CFR 700.5. In addition, the Utah regulatory term ``coal mining

and reclamation operations'' specifically incorporates the term

``surface coal mining and reclamation operations,'' which is defined at

Utah Code Annotated (U.C.A.) 40-10-3(17). The Utah statutory definition

of ``surface coal mining and reclamation operations'' is substantively

identical to the corresponding Federal statutory definition of

``surface coal mining and reclamation operations'' at section 701(27)

of SMCRA and the Federal regulatory definition of that term at 30 CFR

700.5. Furthermore, the term ``coal mining and reclamation operations''

is used throughout Utah's regulations at Utah Admin. R. 645, which

implement the provisions of the Utah Coal Mining and Reclamation Act

(the State Act) at Title 40, Chapter 10, of the U.C.A. Thus, the use of

the term ``coal mining and reclamation operations'' in Utah's proposed

definition of ``affected area'' is both consistent with Utah's

regulations at Utah Admin. R. 645 and is consistent with and no less

effective than the term ``surface coal mining and reclamation

operations,'' as used in the Federal definition of ``affected area.''

For the reasons stated above, the Director approves Utah's proposed

amendment to the term ``affected area'' at Utah Admin. R. 645-100-200.

2. Definition of ``Road''

The only difference between Utah's proposed definition of ``road''

at Utah Admin. R. 645-100-200 and the Federal definition of ``road'' at

30 CFR 701.5 is that Utah uses the term ``coal mining and reclamation

operations'' in its definition, while the Federal definition of

``road'' uses the term ``surface coal mining and reclamation

operations.'' As discussed in finding No. III.C.1. above, this

difference is not substantive. Thus, Utah's use of the term ``coal

mining and reclamation operations'' in its proposed definition of

``road'' is consistent with and no less effective than the Federal

definition of ``road.'' In addition, as was discussed in item No.

III.A. above, Utah agreed, as part of the September 4, 1992, agreement

(provision I.2.a.), to conform the withdrawal of its supplemental

policy statement. By letter dated June 10, 1992, Utah notified OSM that

the Board of Oil, Gas and Mining did, in fact, withdraw the

supplemental policy statement, effective December 5, 1991

(administrative record No. UT-771). Accordingly, the Director approves

Utah's proposed amendment to the term ``road'' at Utah Admin. R. 645-

100-200, accepts Utah's withdrawal of the supplemental policy

statement, and removes the required amendments codified at 30 CFR

944.16(n)(1) and (2).

3. Definition of ``Public Road''

Utah's proposed definition of ``public road'' at Utah Admin. R.

645-100-200, among other things, adds language that limits the use of

this term to the purposes of parts Utah Admin. R. 645-103-200, 645-301-

521.123, and 645-301-521.133. These parts of the Utah program contain

rules for designating lands unsuitable for coal mining and reclamation

operations. Thus, Utah's proposed definition of ``public road'' is

applicable only to the Utah rules for designating lands unsuitable for

such mining. This limitation is consistent with the Federal definition

of ``public road'' at 30 CFR 761.5, which applies only in the limited

context of areas designated by Act of Congress as being unsuitable for

surface coal mining operations (56 FR 58846, 58849, November 22, 1991).

Thus, Utah's proposed addition of the above-referenced language to its

definition of ``public road'' at Utah Admin. R. 645-100-200 is

consistent with and no less effective than the Federal definition of

``public road'' at 30 CFR 761.5. The Director approves Utah's proposed

amendment to the term ``public road'' and removes the required

amendment at 30 CFR 944.16(o).

IV. Summary and Disposition of Comments

A. Public Comments

1. Support for Utah's Proposed Amendment: Processing of Amendments

Two commenters said they supported the proposed amendments and

encouraged their approval as quickly as possible. The commenters

further noted that approval of these definitions, which are identical

to the Federal definitions, will remove any ambiguity recognized with

respect to Utah's responsibilities to permit roads used primarily for

coal mining purposes. In addition, the commenters stated that,

according to OSM regulations at 30 CFR 732.17(h)(7), approval of the

proposed amendments was required by January 15, 1993, 30 days after the

close of the comment period (December 16, 1992), and that in doing so,

OSM must, as required by 30 CFR 732.17(h)(10), apply the criteria set

forth in 30 CFR 732.15 when determining whether to approve such

amendment. Finally, the commenters said that because the proposed

amendments are identical to the existing Federal regulations, there

should be no question that the amendments should be approved within the

mandatory 30-day time period.

OSM concurs with the commenter's interpretation regarding the

above-cited Federal regulations. However, OSM also believes it

necessary to provide clarification regarding the applicability of

amendment processing procedures and the comment that approval of the

proposed amendments was required by January 15, 1993, 30 days after the

close of the comment period following publication of the proposed rule

notice in the Federal Register.

Each State program amendment raises different legal and technical

issues that require differing levels of analysis. Therefore, unless a

proposed amendment is a verbatim copy of the comparable Federal

regulation, it may require extensive review and analysis by Federal

authorities in consultation with their State counterparts. The process

involves review of widely varying amendments that must comport with

Federal and State laws and court cases. Rather than simply disapprove a

deficient proposal, OSM attempts to work with the State to bring the

proposal up to a level where it is comparable to and no less effective

than the Federal regulations. This process can be time consuming. Thus,

the potential for delays in the process is a constant.

With respect to Utah's September 17, 1992, proposed amendment, OSM

identified deficiencies regarding Utah's definitions of ``affected

area,'' ``road,'' and ``public road.'' Accordingly, OSM notified Utah

of the deficiencies by an issue letter dated January 21, 1993. The

issue letter provided Utah with an opportunity to correct the specified

deficiencies. Utah responded to the issue letter in a revised amendment

dated March 24, 1993. OSM then announced receipt of the revised

proposed amendment in the April 8, 1993, Federal Register (58 FR

18187), and, in the same notice, reopened and extended the public

comment period for 15 days. The extended comment period closed on April

23, 1993. Therefore, according to OSM regulations at 30 CFR

732.17(h)(7), approval or disapproval of Utah's proposed amendment was

required by May 24, 1993, the first work day 30 days after the close of

the extended comment period.

However, with respect to timely processing of amendments, the

general rule is that a statutory or regulatory time period for agency

action is not mandatory unless it specifies a consequence for the

agency's failure to meet the prescribed deadline. Where no such

consequence is specified, the time period is regarded as directory

only, intended to guide agency procedures but not to set inflexible

requirements. (See, Brock v. Pierce County, 476 U.S. 253, 259, 106 S.

Ct. 1834, 1838, 90 L. Ed. 248, 255 (1986); In re Barr Laboratories,

Inc., 930 F.2d 72, 74 (D.C. Cir. 1991); and, 1A N. Singer, Sutherland

Statutory Construction Sec. 25.03 (5th ed. 1991)).

In the case of the State program amendment process, the regulation

at 30 CFR 732.17(h)(7), which requires OSM to approve or disapprove the

proposed amendment within 30 days of the close of the comment period,

and the regulation at 30 CFR 732.17(h)(13), which establishes the 6-

month period for the completion of action on State program amendments,

do not impose any consequence in the event OSM fails to meet the

deadlines. Thus, these deadlines are directory, rather than mandatory.

2. Additional Support for Utah's Proposed Amendment

One commenter, who resides in a rural county in Utah that contains

extensive coal reserves, responded with support of Utah's proposed

amendment. The commenter further noted that (1) because of the small

population base and large geographic parameters of the county, which

contains mostly Federal lands, it is important to have Utah's proposed

definitions in place in order to develop the local economy and (2) the

coal mining industry is a large part of the local economy providing

employment for the citizens of the area. OSM acknowledges these

comments.

3. Terms of the September 4, 1992, Agreement

Several commenters expressed concerns about the September 4, 1992,

agreement. That agreement provides in pertinent part as follows:

I. The [Utah] Division [of Oil, Gas and Mining] agrees to:

* * * * *

2. In recognition of the direction of the Director of OSM as set

forth in OSM's final rule published on November 22, 1991, 56 FR

58846 (the final rule):

* * * * *

b. Submit a program amendment of the Division's definition of

the term ``Road'', to read the same as the corresponding federal

definition at 30 CFR 701.5;

c. Submit a program amendment of the Division's definition of

the term ``Public Road'', to read the same as the corresponding

federal definition at 30 CFR 761.5 and, in addition, provide that

the definition applies only in the context of Utah Admin. R645-103-

100, et seq., Areas unsuitable for Coal Mining and Reclamation

Operations; and

d. Submit a program amendment of the Division's definition of

the term ``Affected Area'' to read the same as the corresponding

federal definition at 30 CFR 701.5.

II. OSM and the Division agree that:

1. If a road in Utah has not previously been determined to be

part of an existing surface coal mining operation, the road will not

be required to be included within a permit, based on current federal

statute and regulations and the current Utah statute and rules; and

2. With respect to any application for a permit to conduct

surface coal mining and reclamation operations under the Utah Coal

Regulatory Program, including any application pending at the time of

this agreement, the state will apply the Utah statute and rules

existing on the date of permit approval.

One commenter asserted that the Federal regulatory definitions of

``road,'' ``public road,'' and ``affected area,'' and Utah's proposed

amendment to its regulatory definitions of those terms, do not clearly

define OSM's and Utah's jurisdiction over public roads. The commenter

stated that until OSM and Utah clarify their jurisdiction over public

roads, they must only impose on operators regulations that conform to

the specific terms of the September 4, 1992, agreement. The commenter

noted that this agreement requires Utah to submit to OSM a program

amendment to Utah's regulatory definitions of ``road,'' ``public

road,'' and ``affected area'' that ``reads the same as'' the

corresponding Federal regulatory definitions of those terms. In line

with this position, the commenter stated that Utah's proposed amendment

must be changed because the proposed definitions of ``road,'' ``public

road,'' and ``affected area'' use terms, such as ``coal mining and

reclamation operations,'' that are not contained in the corresponding

Federal regulatory definitions of ``road,'' ``public road,'' and

``affected area.'' Alternatively, the commenter stated that OSM may

approve Utah's proposed amendment, but only after OSM formally changes

its own regulatory definitions of ``road,'' ``public road,'' and

``affected area'' to use such terms as ``coal mining and reclamation

operations.'' Also, the facilitate this position, the commenter stated

that OSM's and Utah's regulations must be modified to include the

specific terms of the September 4, 1992, agreement. Two additional

commenters stated that, in accordance with the September 4, 1992,

agreement, all Utah mine roads existing as of that date were

``grandfathered,'' i.e., exempted from regulation. The commenters

further said that under that agreement, if a road had not been included

within a permitted surface coal mining operation prior to September 4,

1992, it will not be incorporated into a permit. The commenters then

requested that the Utah program be amended to specifically incorporate

this grandfather provision.

OSM agrees with the comment that the Federal regulatory definitions

of ``road,'' ``public road,'' and ``affected area,'' and Utah's

proposed amendment to its regulatory definitions of those terms, do

not, respectively, clearly define OSM's and Utah's jurisdiction over

public roads. Those definitions, however, do not purport, in and of

themselves, to define jurisdiction over public roads. In the preamble

to the final roads rule, OSM said that it currently relies on the

applicable language of the Federal definitions of ``surface coal mining

operations'' at section 710(28) of SMCRA and the Federal regulations at

30 CFR 700.5, and that Utah must, among other things, also rely on its

statutory definition of that term at U.C.A. 40-10-3(18) in determining

jurisdiction over public roads (56 FR 58846, 58848-49, November 22,

1991). Also, in the final roads rule, as discussed under part III.A. of

this notice, OSM found that, when determining whether a public road is

subject to regulation under SMCRA and the Utah program, the regulatory

authority must consider the extent and effect of the mining-related use

of the road (56 FR 58846, 58847-49, 58851-52, 58854-55, November 22,

1991). Thus, OSM's and Utah's jurisdiction over public roads is

determined, respectively, under the Federal and Utah definitions of

``surface coal mining operations'' and other guidance such as the

preamble to the final roads rule.

OSM disagrees with the comment that the Federal and Utah regulatory

definitions of ``road,'' ``public road,'' and ``affected area'' must

literally ``read the same.'' Pursuant to 30 CFR 732.15(a), OSM may

approve a proposed amendment to a State program if, among other things,

the proposed amendment is in accordance with SMCRA and consistent with

the Federal regulations implementing SMCRA. OSM interprets paragraphs

I.2.b., c., and d. of the September 4, 1992, agreement to only require

Utah to submit to OSM a proposed amendment meeting those requirements.

For the reasons discussed above under part III of this notice, OSM

finds that Utah's proposed amendment meets, upon the stated conditions,

the requirements of 30 CFR 732.15(a) and provisions I.2.b., c., and d.

of the September 4, 1992, agreement.

OSM disagrees with the comment that the Federal and Utah

regulations must be modified to include the specific terms of the

September 4, 1992, agreement. Nothing in SMCRA, the Federal

regulations, the Utah program, or the September 4, 1992, agreement

requires Utah or OSM to modify their respective regulations to include

specific terms of that agreement.

In addition, OSM notified Utah, by letter dated May 19, 1993, of

its determination that paragraph II.1. of the September 4, 1992,

agreement, which would have exempted certain Utah mine roads from

regulation under SMCRA and the Utah program, is contrary to law and

thus is not binding on OSM. The September 4, 1992, agreement was not

reviewed, approved, or adopted by the court in Utah v. Lujan. Thus, it

is nothing more than a contract between OSM and Utah. Under general

contract law, a Federal agency cannot contract with a body it regulates

in a manner contrary to its statutory authority or in a manner that

does not give full effect to the intent of the Congress (Board of

Directors and Officers, Forbes Federal Credit Union v. National Credit

Union Admin., 477 F.2d 777, 784 (10th Cir. 1973)). Contracts entered in

violation of statutory or regulatory law are unenforceable if

enforcement would ``offend the essential purpose of the enactment''

(United States v. Mississippi Valley Co., 364 U.S. 520, 563 (1961). See

also Quinn v. Gulf Western Corp., 644 F.2d 89, 93-94 (2d Cir. 1981);

D.M. Yates, 74 IBLA 159, 161 (1983). See generally E. Farnsworth,

Contracts sections 5.5-5.6 (2d ed. 1982); 15 S. Williston, Contracts

section 1763 (3d ed. 1972)). In other words, OSM is free to enter into

contracts or agreements with other parties, but when a provision of a

contract or agreement conflicts with OSM's statutory responsibilities

under SMCRA such that its enforcement would offend an essential purpose

of SMCRA, that provision is unenforceable.

Under paragraph II.1. of the September 4, 1992, agreement, Utah and

OSM agreed to a blanket exemption from regulation under SMCRA and the

Utah program of all unpermitted mine roads existing prior to September

4, 1992. SMCRA jurisdiction over mine roads derives from the statutory

definition of the term ``surface coal mining operations'' at section

701(28). SMCRA defines this term, in pertinent part, to mean:

(A) Activities conducted on the surface of lands in connection

with a surface coal mine * * *; and

(B) the areas upon which such activities occur or where such

activities disturb the natural land surface. Such areas shall also

include * * * all lands affected by the construction of new roads to

gain access to the site of those activities and for haulage * * *

(emphasis added). This definition of ``surface coal mining operations''

is substantively identical to the Federal regulatory definition of that

term at 30 CFR 700.5 and Utah's statutory definition of that term at

U.C.A. 40-10-3(18).

Under those definitions, OSM and Utah are required to regulate

certain mine roads, based, in part, on the extent and effect of mining-

related use of the road (see 56 FR at 58847-49 (1991); 55 FR 13773,

13775 (1990); 53 FR 54190, 54192 (1988)). Nothing in SMCRA or the Utah

program provides for a blanket exemption of mine roads from regulation.

To the contrary, jurisdiction over mine roads must be made on a case-

by-case basis (see 56 FR at 58848 (1991); 55 FR 13773, 13775 (1990); 53

FR 54190, 54193 (1988)).

By granting a blanket exemption to existing, unpermitted mine roads

without any consideration given to the amount of their mining-related

use, paragraph II.1. of the September 4, 1992, agreement would have

exempted roads which, under SMCRA and the Utah program, OSM and Utah

are required to regulate. Thus, paragraph II.1. is contrary to SMCRA

and the Utah program.

Moreover, the enforcement of paragraph II.1. of the September 4,

1992, agreement offends an essential purpose of SMCRA and the Utah

program (See Mississippi Valley, 364 U.S. at 563). One of SMCRA's

essential purposes is ``to protect the environment and ensure the

reclamation of mined areas'' (Daniel Brothers Coal Co., 2 IBSMA 45, 49

(1980); see also section 102(a) of SMCRA). Also, as U.C.A. 40-10-2(3)

indicates, one of the purposes of the Utah program is to ``[a]ssure

that surface coal mining operations are conducted so as to protect the

environment.'' Given the significant environmental harm that can result

from unregulated mine access and haul roads, these statutory purposes

cannot be fully met by an agreement, such as paragraph II.1., to grant

an unauthorized regulatory exemption.

For the reasons given above, paragraph II.1. of the September 4,

1992, agreement is contrary to SMCRA and the Utah program, and because

its enforcement would offend an essential purpose of these laws it is

unenforceable. Accordingly, paragraph II.1. must not be applied by OSM

or Utah to any permitting or enforcement decisions in Utah.

Under paragraph II.2. of the September 4, 1992, agreement, Utah

agreed to ``apply the Utah statute and rules existing on the date of

permit approval'' to any permit applications pending on September 4,

1992, and to any future permit applications. In the aforementioned

letter to Utah dated May 19, 1993, OSM stated that this provision is

valid as long as (1) the phrase ``Utah statutes and rules'' is

interpreted to mean the approved Utah State program; (2) any

application of the Utah statute and rules to a permitting decision is

consistent with the Department of the Interior's actions in approving

or not approving such statutes and rules (see, e.g., 56 FR 58846,

November 22, 1991); and (3) the provision is not interpreted to prevent

Utah or OSM from taking action subsequent to permit approval, where

appropriate under the approved program (e.g., requiring a permit

revision to reflect changes in applicable law).

For these reasons, the Federal regulations and the Utah program

must not be modified to include the specific terms of paragraphs II.1.

and II.2. of the September 4, 1992, agreement.

4. Basis for Submission of Utah's Proposed Amendment and the Effect of

OSM's Invalidation of Provision II.1. of the September 4, 1992,

Agreement on Utah's Proposed Amendment

One commenter stated that OSM's May 19, 1993, letter, which

notified Utah that a portion of the September 4, 1993, agreement

between Utah and OSM was contrary to law and therefore not binding on

OSM, constitutes an abrupt reversal of position and abdication of the

agreement that forms the basis for the amendment addressed in this

notice. Notwithstanding OSM's action on the agreement, the commenter

requested that OSM approve the amendment.

OSM disagrees with the commenter's inference that the agreement was

the sole reason that Utah submitted the amendment to OSM. When OSM and

Utah drafted the agreement, they ensured that the required amendments

of the Director's decision in the November 22, 1991, Federal Register

would be satisfied by Utah complying with provisions I.2. b., c., and

d. of the agreement. Therefore, when Utah submitted proposed

definitions of ``road,'' ``public road,'' and ``affected area,'' it did

so not only in accordance with provisions I.2. b., c., and d. of the

agreement, but also in response to required program amendments at 30

CFR 944.16 (n) and (o) that OSM placed on the Utah program in the

November 22, 1991, notice. Had OSM and Utah not entered into the

agreement, Utah still would have had to submit proposed definitions to

satisfy the required amendments at 30 CFR 944.16 (n) and (o).

OSM also disagrees with the commenter's assertion that OSM's

approval of the amendment would be inconsistent with OSM's notification

to Utah that a part of the agreement was contrary to law and not

binding on OSM. The agreement consisted of two parts. The first part

(provision I) addressed actions by Utah (1) to withdraw with prejudice

its lawsuit on certain roads violations that OSM issued in Utah

(provision I.1.) and (2) to withdraw a policy statement and revise its

definitions of ``road,'' ``public road,'' and ``affected area'' in a

manner consistent with the corresponding Federal definitions at 30 CFR

701.5 and 761.5 (provisions I.2. a., b., c., and d.). The second part

(provision II.) addressed the implementation of the Federal and State

statutes and regulations with respect to (1) existing roads that were

not, as of September 4, 1992, previously determined to be part of an

existing surface coal mining operation and required to be permitted

(provision II.1.) and (2) permit applications pending Utah's approval

or disapproval as of September 4, 1992 (provision II.2.). While OSM by

its May 19, 1993, letter notified Utah that provision II.1. of the

September 4, 1993, agreement between Utah and OSM was not binding on

OSM, provisions I.1., I.2. a., b., c., and d., and II.2. remained in

effect. Therefore, contrary to the commenter's statement, OSM could

approve the amendment as long as Utah's proposed definitions of

``road,'' ``public road,'' and ``affected area,'' which are the subject

of provisions I.2. a., b., c., and d., of the agreement, were not

inconsistent with the corresponding Federal definitions at 30 CFR 701.5

and 761.5.

In addition, the commenter raised several arguments concerning the

legal validity of the reasons OSM set forth in its May 19, 1993,

notification to Utah that provision II.1. of the September 4, 1993,

agreement between Utah and OSM was contrary to law and therefore not

binding on OSM. The Director notes these arguments but does not respond

to them because they are outside the scope of this rulemaking to the

extent that Utah did not submit in this amendment proposed rules

incorporating provision II.1. of the agreement.

5. Jurisdiction

Two commenters expressed concerns that Utah's proposed definitions

of ``road,'' ``public road,'' and ``affected area,'' would

inappropriately broaden the State's jurisdiction under the State Act to

regulate ``public roads'' that service coal mining operations, coal

exploration activities, and most haulage. The commenters noted that the

term ``public road'' would no longer be applied in determining areas

that should be permitted under the State Act since that term, as

proposed, would be limited to defining areas unsuitable for mining. The

commenters stated that, accordingly, the definition of ``public road,''

which includes criterion (d) indicating that a public road must meet

construction standards for other public roads of the same

classification in the local jurisdiction, will no longer be applied in

determining whether or not a road should be permitted under the State

Act.

OSM disagrees with the comment that Utah's proposed definitions

will inappropriately broaden the State's jurisdiction under the State

Act to regulate ``public roads.'' As discussed above under part III.A.

of this notice, on February 25, 1991, Utah adopted certain revisions to

its definitions of ``road'' and ``public road'' at Utah Admin. R. 645-

100-200, along with a supplemental policy statement that, considered

together, would exempt all public roads from regulation under the Utah

program. That adoption by Utah, however, did not take effect because it

was never approved by OSM, as required by 30 CFR 732.17(g). Thus, the

term ``public road,'' as adopted by Utah on February 25, 1991, was

never effective as a matter of law. Consequently, Utah's proposed

amendment does not serve to broaden its jurisdiction to regulate a

``public road.'' In addition, and more importantly, even if Utah's

proposed definition of ``public road'' is mistakenly interpreted as

broadening jurisdiction, it is not inappropriate since it is no less

effective than the corresponding Federal definition of ``public road.''

6. Public Roads and the Phrase ``Substantial (More Than Incidental)''

Public Use

Two commenters stated that Utah's proposed definition of the term

``affected area'' appears to exclude public roads and requested that

Utah further defined the phrase ``substantial (more than incidental)''

public use, as used in the definition of ``affected area.'' In

addition, one of the commenters said the definition of ``affected

area'' should be clarified to state a percentage of vehicle traffic

other than mining that would constitute public use.

OSM acknowledges the comment that Utah's proposed definition of

``affected area'' appears to exclude public roads. However, as

discussed above under part III.C.1. of this notice, the editorial note

in Utah's proposed definition of ``affected area'' has the effect of

including in the ``affected area'' all roads that are included in the

definition of ``coal mining and reclamation operations.''

OSM disagrees with the comments that Utah further define the phrase

``substantial (more than incidental)'' public use and that Utah provide

a percentage of vehicle traffic other than mining that would constitute

public use. In the preamble to a final rule establishing performance

standards for roads associated with surface coal mining operations, OSM

said that:

State laws vary widely in their road classification systems.

OSMRE [OSM] is concerned that roads constructed to serve mining

operations not avoid compliance with the performance standards by

being deeded to public entities. However, it is not OSMRE's

intention automatically to extend jurisdiction over roads into the

existing public road network. Jurisdiction under the Act [SMCRA] and

applicability of the performance standards are best determined on a

case-by-case basis by the regulatory authority.

(53 FR 45190, 45193, November 8, 1988). Thus, a case-by-case approach

is necessary in determining the applicability of the Utah program to

public roads. Utah's proposed amendment, as discussed under part

IV.A.3. of this notice, provides guidance that is no less effective

than that specified in the Federal definition of ``surface coal mining

operations'' at 30 CFR 700.5 regarding which public roads are subject

to Utah's jurisdiction.

Another commenter suggested that the Utah term ``public road''

additionally include roads to which the public has access. As indicated

in finding No. III.C.3., Utah adds language that limits the use of this

term to parts R645-103-200, R645-301-521.123, and R645-301-521.133 of

Utah's rules, which pertain only to designating lands unsuitable for

coal mining and reclamation operations. While OSM appreciates the

commenter's suggestion, it cannot require Utah to amend its definition

further because the proposed definition has been determined to be no

less effective than the corresponding Federal definition.

7. Definition of ``Road''

Two commenters stated that Utah's proposed definition of the term

``road'' is so broad that it includes almost any road that carries coal

in intrastate and interstate commerce, and should be amended to clarify

that the term ``road'' does not include ``public roads'' or roads

excluded under the term ``affected area.''

OSM disagrees with these comments. Utah's proposed definition of

the term ``road'' is substantively identical to the Federal regulatory

definition of that term at 30 CFR 701.5. Both of those definitions of

``road'' are clear on their respective terms as to which roads are to

be regulated as surface coal mining operations. The determination as to

whether a particular road will be regulated as part of a surface coal

mining operation must be made on a case-by-case basis by the regulatory

authority, and must be based upon the mining-related use of the road

(53 FR 45190, 45192, November 8, 1988; 56 FR 58846, 58848-9, November

22, 1991).

8. Application of Mining-Related Use of Roads as Criteria To Determine

Whether a Road Is Subject to SMCRA Permitting Requirements

A commenter stated that OSM's application of the extent and effect

of the mining-related use of roads as criteria in determining whether a

road is subject to SMCRA permitting requirements is contrary to OSM's

announced deference to State decision making, whereby States with

primacy should be allowed to determine, on a case-by-case basis, which

roads must be included within the permit area. Specifically the

commenter asserted that nothing in SMCRA or the Federal regulations

grants OSM the authority to make case-by-case determinations in primacy

States of which roads must be included within a permit area. The

commenter next stated that OSM has no standards in place that define

the point at which mining-related use requires the inclusion of a road

within a permit area. The commenter further stated that there are no

Federal standards defining what constitutes a de minimus use of a road.

Instead, OSM has allowed States to determine the point at which

jurisdiction begins and ends through individual State permitting

decisions. Thus, the commenter concluded that the Federal regulatory

definition of ``affected area'' no longer provides relevant guidance in

light of OSM's deference to State decision making.

With respect to the first comment that OSM relies on the extent and

effect of the mining-related use of roads as criteria in determining

whether a road is subject to SMCRA permitting requirements, OSM wishes

to emphasize that the regulation of public roads as part of a surface

coal mining operation is not solely dependent upon the use of a road.

Factors such as the purpose and time of its construction, the extent to

which the road is directly part of a surface coal minng operation, the

degree to which the road is altered to accommodate mining operations,

and the impact of mining operations on the road and its surrounding

environment may be major considerations in determining whether a road

is subject to regulation under SMCRA. In addition, under the Federal

definition of ``surface coal mining operations'' at 30 CFR 700.5, a

road may be subject to regulation under SMCRA notwithstanding the lack

of demonstrable impacts associated with its mining-related

construction, maintenance, and use. Therefore, even in the absence of

such evidence, it may be appropriate to regulate a road in order to

ensure, through the SMCRA permitting, inspection, and enforcement

processes, that the purposes of SMCRA are achieved (56 FR 58846, 58852,

November 22, 1991).

With respect to the comments regarding the lack of Federal

standards for determining when mining-related use requires the

inclusion of a road within the permit area, the definitions of

``affected area'' and ``surface coal mining and reclamation

operations'' provide guidance in these instances.

OSM has modified its regulations in accordance with court decisions

to provide guidance to States and other interested parties for

determining when roads will be regulated as part of a surface coal

mining operation. OSM, pursuant to court order in In re Permanent

Surface Mining Regulation Litigation (In re Permanent), 620 F. Supp.

1519, 1581-82 (D.D.C. 1985), modified sub. nom., National Wildlife

Federation v. Hodel, 839 F.2d 694 (DC Cir. 1988), modified its

interpretation of the extent to which SMCRA applied to public roads.

Specifically, OSM suspended the Federal regulatory definition of

``affected area'' to the extent that it excluded public roads that are

included in the Federal regulatory definition of ``surface coal mining

operations'' (51 FR 41952, November 20, 1986). OSM stated that ``[t]he

suspension will have the effect of including in the `affected area' all

lands affected by the construction of new roads or the improvement or

use of existing roads to gain access to the site of the regulated

activities or for haulage'' (51 FR 41952, 41953, emphasis added).

In determining which mining-related roads are subject to

regulation, OSM currently relies on the applicable language of the

Federal definitions of ``surface coal mining operations'' at section

701(28) of SMCRA and 30 CFR 700.5. This may require, in appropriate

circumstances, that OSM and State regulatory authorities issue, and

surface coal mine operators obtain, permits for certain public roads

(56 FR 58846, 58848, November 22,1991).

With respect to the comment on the scope of OSM's oversight

authority in primacy States to review the States' case-by-case

determinations on roads, OSM will not respond here. This issue is

pertinent to Utah's implementation of its statute and rules and OSM's

oversight of Utah's actions in accordance with section 201 of SMCRA,

but is not pertinent to this State program amendment.

9. Proper Interpretation of ``Affected Area''

A commenter asserted that OSM has failed to consider the extent to

which a broad interpretation of the term ``affected area'' may conflict

with other regulations that define which public roads are entitled to

environmental protection. As an example, the commenter cited section

522(e)(4) of SMCRA, which states that no surface coal mining operations

shall be permitted within 100 feet of the outside right-of-way line of

any public road, and the definition of ``public road'' at 30 CFR 761.5,

which implements section 522(e)(4) of SMCRA and lists the following

criteria a road must meet in order to qualify as a public road: the

road has been designated as a public road by the State or local law, it

is maintained with public funds, there is substantial, or more than

incidental, public use, and the road meets applicable road construction

standards. The commenter continued that OSM should not apply one

definition of ``public road'' for the purpose of implementing the SMCRA

section 522(e) prohibitions and another definition for determining

whether a road falls within the scope of ``surface coal mining

operations'' subject to permitting requirements. The commenter

concluded that OSM should avoid construing the definition of ``affected

area'' in a manner that would conflict with other statutory and

regulatory requirements.

OSM does not agree with these comments. As discussed below, OSM is

constrained by the court's decision in In re Permanent in how it

regulates roads.

The Federal definition of ``affected area'' once included a

``substantial (more than incidental) public use'' criterion, as the

current definition of ``public roads'' also does. However, paragraph

(c) of the Federal definition of ``affected area'' at 30 CFR 701.5, in

which OSM previously interpreted the term ``affected area'' as not

applying to roads for which `'there is substantial (more than

incidental) public use,'' was successfully challenged in In re

Permanent. As a result, and as stated above in response to comment

IV.A.8., OSM modified its interpretation of the extent to which SMCRA

applied to public roads and suspended the definition of ``affected

area'' ``to the extent that it excludes public roads that are included

in the definition of ``surface coal mining operations'' (51 FR 41952,

41953, November 20, 1986). The Federal definition of ``public road'' at

30 CFR 761.5 was not challenged and the ``substantial (more than

incidental) public use'' criterion in that definition remains in force

in the context of lands unsuitable for mining.

The commenter addressed the editorial note that Utah proposes for

the definition of ``affected area.'' This note indicates that a portion

of the definition is suspended insofar as it excludes roads that are

included in the definition of ``coal mining and reclamation

operations'' at Utah Admin. R. 645-100-200. The commenter stated that

this clarification is not necessary because the State's proposed

definition of ``affected area'' clearly delineates the regulatory

authority's jurisdiction.

OSM disagrees with this comment. As finding No. III.C.1. indicates,

Utah's proposed definition of ``affected area'' and accompanying

editorial note are, with only a few nonsubstantive differences,

verbatim copies of the Federal definition of ``affected area'' and

accompanying editorial note. As discussed above, the editorial note

accompanying the Federal definition is necessary to bring the

definition into compliance with the court decision In re Permanent. The

same is also the case with the State definition. Without the editorial

note or other equivalent revision to Utah's rules, the Utah program

would not be consistent with the Federal regulations that were revised

in response to the court decision.

B. Agency Comments

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

Utah's proposed amendment from the Administrator of the U.S.

Environmental Protection Agency (EPA), the Secretary of the U.S.

Department of Agriculture, and the heads of other Federal agencies with

an actual or potential interest in the Utah program.

By letter dated January 21, 1993, the U.S. Forest Service (USFS)

commented that forest development roads (FDR'S) are not public roads

(23 U.S.C. 101(a)) in the same sense as roads that are under the

jurisdiction of public agencies, such as States or counties

(administrative record No. UT-821) and are not intended to meet the

transportation needs of the public at large. Instead, they are

authorized only for the administration and utilization of National

Forest System lands. Although FDR's are generally open and available

for public use, that use is at the discretion of the Secretary of

Agriculture. Through authorities delegated by the Secretary, USFS may

restrict or control use to meet specific management direction.

Commercial users, permittees, or contractors also may be required to

share in the cost of developing, improving, and maintaining FDR's.

USFS also stated that it may regulate use and restrict public

travel on FDR's regardless of whether there is substantial or

incidental use. The USFS added that sometimes there are FDR's with

seasonal adjusted daily traffic of less than 10 vehicles per day ``open

to public travel'' when these roads serve large blocks of Forest lands,

serve important resources, or are the only access routes within the

block of land.

USFS recommended that because it has the legal right to control or

regulate FDR's, Utah Admin. R. 645-301-200 (defining ``public road'')

should be modified to (1) include FDR's with those roads that have been

designated public roads pursuant to the jurisdiction in which it is

located and (2) exclude FDR's from the use restriction that there be

substantial (more than incidental) public use of a road in order for it

to qualify as a public road. USFS stated that with these recommended

changes, it could concur with the formal amendment.

By a second letter dated September 9, 1993 (administrative record

No. UT-870), USFS restated its concern regarding rules that attempt to

dictate standards of development or maintenance relating to roads under

the jurisdiction of public road agencies or Federal agencies providing

public access to lands of the United States. USFS further stated that

SMCRA regulations must be limited to restrictions on coal

hauling activities rather than orders to reclaim or otherwise modify

the transportation facility. The proposed amendment does not clarify

this issue sufficiently to present [sic] unilateral decisions by OSM

and DOGM [(the Division)] on roads managed for public access.

OSM appreciates USFS's concerns as stated in its January 21, 19923,

and September 9, 1993, letters. OSM cannot, however, require the State

to adopt the recommended changes to the proposed definition of ``public

road'' at Utah Admin, R. 645-301-200 because the proposed definition is

substantively identical to the Federal definition at 30 CFR 761.5 and

is, therefore, no less effective than the corresponding Federal

definition.

Further, as explained below, the existing Federal definition and

proposed State definition of ``public road,'' will not interfere with

USFS jurisdiction over FDR's and will protect FDR's from the adverse

effects of surface mining to the extent allowed under SMCRA and the

State Act.

The term ``public road'' is defined at 30 CFR 761.5 and at proposed

Utah Admin. R. 645-301-200 so that it may be used in determining when a

surface coal mining operation may be conducted within 100 feet of a

road:

[No surface coal mining operations shall be conducted] within

100 feet, measured horizontally, of the outside right-of-way line of

any public road * * *

(30 CFR 761.11(d) and Utah Admin. R. 645-103-234, emphasis added).

In order to be considered a ``public road,'' a road must be one

(a) Which has been designated as a public road pursuant to the

laws of the jurisdiction in which it is located;

(b) Which is maintained with public funds in a manner similar to

other public roads of the same classification within the

jurisdiction;

(c) For which there is substantial (more than incidental) public

use; and

(d) Which meets road construction standards for other public

roads of the same classification in the local jurisdiction.

(30 CFR 761.5 and proposed Utah Admin. R. 645-301-200).

In its comments, USFS implies that, although FDR's may not meet, in

certain instances, the requirements of ``public designation'' and

``substantial public use'' in subsections (a) and (c) above, FDR's

should be treated as ``public roads'' for purposes of determining when

a surface coal mining operation may be conducted within 100 feet of a

road. As explained below, when appropriate, FDR's will constitute

``public roads'' under the existing Federal and proposed State

language. Changes to specifically add FDR's to these regulations are

thus unnecessary.

The phrase, ``which has been designated as a public road pursuant

to the laws of the jurisdiction in which it is located,'' under

subsection (a) of the definition of ``public road,'' is interpreted by

OSM to include USFS jurisdiction over FDR's. Therefore, FDR's that USFS

designates as ``public'' meet the ``designation'' requirement of the

definition. There is no need to add specific language concerning FDR's

to this requirement of the definition.

As for the ``public use'' requirement of the definition, if an FDR,

like any other road, receives substantial public use, the FDR will

satisfy this requirement of the definition.

USFS, from its comments of September 9, 1993, also appears

concerned that OSM's and Utah's definitions of ``public road'' will

improperly allow OSM's and Utah's regulatory authority to extend to the

``development'' and ``maintenance'' of FDR's. USFS further asserts that

``SMCRA regulations must be limited to restrictions on coal hauling

activities rather than orders to reclaim or otherwise modify the

transportation facility.'' Again, these concerns are addressed by the

existing Federal and proposed State regulations.

With respect the USFS's first concern, except for a road that is

part of a surface coal mining operation, neither OSM nor Utah has the

authority to regulate the ``development'' or ``maintenance'' of a road

located on USFS lands. Moreover, the Federal and State ``public road''

definition, rather than providing such authority, actually provides

FDR's with protection from the adverse effects of surface coal mining

operations by prohibiting surface coal mining operations from being

conducted within 100 feet of any FDR that constitutes of ``public

road.'' Finally, it should be noted that surface coal mining operations

may be conducted on USFS lands only if the operation in question meets

the stringent land conservation requirements of 30 CFR 761.11(b), which

include the power of the Secretary of Agriculture, in certain

circumstances, to prohibit such mining.

With respect to USFS's second concern, even if OSM desired to limit

its regulatory power to only coal hauling activities, rather than to

the transportation facility itself, it could not do so. OSM is required

by section 515(b)(17) of SMCRA (30 U.S.C. 1265(b)(17)) to regulate the

construction, maintenance, and reclamation of roads used in connection

with a surface coal mining operation. Such regulation, should it extend

to FDR's, is not a usurping of USFS's authority to control roads under

its jurisdiction, but it rather OSM fulfilling its mandate, under

SMCRA, to ensure that lands disturbed by surface coal mining operations

are not permanently damaged.

Therefore, on the basis of the above discussion, OSM does not

required Utah to amend its program in response to USFS's comments.

By letters dated October 29, 1992, and August 16, 1993, the Army

Corps of Engineers responded that the proposed changes to the Utah

program were satisfactory to that agency (administrative record Nos.

UT-796 and UT-859).

By letter dated November 2, 1992, the Bureau of Land Management

said that it had no concerns regarding the proposed amendment

(administrative record No. UT-797).

By letter dated October 22, 1992, the U.S. Bureau of Mines (BOM)

said that it had no comments in response to the proposed amendment

(administrative record No. UT-793). By additional letters dated April

12 and August 10, 1993, BOM responded that because the revised

definitions of the terms ``affected area,'' ``road,'' and ``public

road'' do not affect the production of mineral resources other than

coal, it had no comment (administrative record Nos. UT-831 and UT-854).

By letters dated October 23, 1992, and May 3 and August 12, 1993,

the U.S. Fish and Wildlife Service (USFWS) said that it found nothing

of significant concern and had no comments on the proposed amendment

(administrative record Nos. UT-795, 838, and 856).

By letters dated January 14, May 12, and August 18, 1993, the Mine

Safety and Health Administration (MSHA) stated that the proposed

amendment did not conflict with current MSHA regulations

(administrative record Nos. UT-818, UT-841, and UT-860).

By letters dated June 10 and August 11, 1993, the Environmental

Protection Agency (EPA) responded that it had no comments on the

proposed amendment (administrative record Nos. UT-844 and UT-855).

By letter dated April 14, 1993, the Soil Conservation Service (SCS)

commented that, with respect to Utah's proposed definition of the term

``road,'' ``hydrologic and erosion control measures'' need to be

included as part of the road as described in the second sentence of the

definition. SCS further stated that this addition is needed because

such measures may be needed to mitigate the effects of drainage areas

and watersheds of road construction and use (administrative record No.

UT-832).

In response, OSM has found in finding No. III.C.2. that Utah's

proposed definition of the term ``road'' is substantively identical to

the Federal regulatory definition of ``road'' at 30 CFR 701.5. In

addition, Utah's rules at Utah Admin. R. 645-301-752.200, .210, .220,

and .250 set performance standards for primary and ancillary roads that

include hydrologic measures that are no less effective than the

corresponding Federal regulations at 30 CFR 816.150(b)(1), (3), and (5)

and 817.150(b)(1), (3), and (5). These State rules read as follows:

752.200. Road Drainage. Roads will be located, designed,

constructed, reconstructed, used, maintained, and reclaimed in

according to R645-301-732.400, R645-301-742-400 and R645-301-762 and

to achieve the following:

R645-301-752.210. Control or prevent erosion, siltation, and the

air pollution attendant to erosion by vegetating or otherwise

stabilizing all exposed surfaces in accordance with current, prudent

engineering practices;

R645-301-752.220. Control or prevent additional contributions of

suspended solids to stream flow or runoff outside the permit area;

* * * * *

R645-301-752.250. Refrain from significantly altering the normal

flow of water in streambeds or drainage channels.

Therefore, although Utah's proposed definition of ``road'' at Utah

Admin. R. 645-100-200 does not include SCS's recommended term

``hydrologic and erosion control measures,'' the aforementioned State

rules do include performance standards that mitigate the effects on

drainage areas and watersheds of road construction and use them in a

manner no less effective than the corresponding Federal regulations. On

this basis, OSM cannot require Utah to revise its program in response

to SCS's comment.

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

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments from the SHPO and ACHP for all amendments that may have an

effect on historic properties. By letters dated October 16, 1992, and

March 31, 1993, OSM solicited comments from these offices

(administrative record Nos. UT-791 and UT-828). Neither the SHPO nor

the ACHP commented on the proposed amendment.

D. U.S. Environmental Protection Agency (EPA) Concurrence

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

written concurrence of the Administrator of EPA with respect to those

aspects of a State 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.) and the Clean Air Act, as amended, (42

U.S.C. 7401 et seq.). EPA gave its written concurrence with the

proposed amendment by letter dated February 17, 1993 (administrative

record No. UT-826).

V. Director's Decision

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

amendment as submitted on September 17, 1992, and revised on March 24,

1993. As discussed in finding No. III.C.1., the Director approves

Utah's proposed amendment to the term ``affected area.'' As discussed

in finding No. III.C.2., the Director approves Utah's proposed

amendment to the term ``road,'' accepts Utah's withdrawal of the

supplemental policy statement, and removes the required program

amendments codified at 30 CFR 944.16(n) (1) and (2). As discussed in

finding No. III.C.3., the Director approves Utah's proposed amendment

to the term ``public road'' and removes the required program amendment

at 30 CFR 944.16(o). The Director is approving these proposed rules

with the provision that they be fully promulgated in identical form to

the rules submitted to and reviewed by OSM and the public.

In accordance with 30 CFR 732.17(f)(1), the Director is also taking

this opportunity to clarify in the required amendment section at 30 CFR

944.16 that, within 60 days of the publishing of this notice, Utah

would have to either submit a proposed written amendment, or a

description of an amendment to be proposed that meets the requirements

of SMCRA and 30 CFR chapter VII and a timetable for enactment that is

consistent with Utah's established administrative or legislative

procedures.

The Federal regulations at 30 CFR part 944, which codify 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

A. Executive Order 12866

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

and Budget under Executive Order 12866 (Regulatory Planning and

Review).

B. 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 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.

C. 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 of 1969 (42 U.S.C.

4332(2)(C)).

D. 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.).

E. 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 that 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.

List of Subjects in 30 CFR 944

Intergovernmental relations, Surface mining, Underground mining.

Dated: March 31, 1994.

Raymond L. Lowrie,

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 (x) to read as

follows:

Sec. 944.15 Approval of amendments to State regulatory program.

* * * * *

(x) Revisions to Utah's definitions of ``affected area,'' ``road,''

and ``public road'' at Utah Admin. R. 645-100-200, as submitted to OSM

on September 17, 1992, and as subsequently revised on March 24, 1993,

as well as Utah's December 5, 1991, withdrawal of its supplemental

policy statement, are approved effective April 7, 1994.

3. Section 944.16 is revised to read as follows:

Sec. 944.16 Required program amendments.

Pursuant to 30 CFR 732.17(f)(1), Utah is required to submit to OSM

by the specified date the following written, proposed program

amendment, or a description of an amendment to be proposed that meets

the requirements of SMCRA and 30 CFR chapter VII and a timetable for

enactment that is consistent with Utah's established administrative or

legislative procedures.

(a) [Reserved]

(b) [Reserved]

[FR Doc. 94-8320 Filed 4-6-94; 8:45 am]

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