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 permanent

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

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

Utah proposed revisions to its rules pertaining to normal husbandry

practices and the Utah ``Vegetation Information Guidelines.'' The

amendment is intended to revise the Utah program to improve operational

efficiency.

EFFECTIVE DATE: September 14, 1995.

FOR FURTHER INFORMATION CONTACT:

Richard J. Seibel, Telephone: (303) 672-5501.

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program

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

approved the Utah program. 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, Federal 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. Submission of Proposed Amendment

By letter dated February 6, 1994, Utah submitted a proposed

amendment to its program (administrative record No. UT-1025) pursuant

to SMCRA (30 U.S.C. 1201 et seq.). Utah submitted the proposed

amendment at its own initiative. Utah proposed to revise its Coal

Mining Rules at Utah Administrative Rule (Utah Admin. R.) 645-301-

357.300 through 365 to specify normal husbandry practices that could be

implemented without restarting the bond liability period. Utah also

proposed to revise its ``Vegetation Information Guidelines,'' by adding

a bibliography of referenced publications for the proposed normal

husbandry practices.

OSM announced receipt of the proposed amendment in the March 15,

1995, Federal Register (60 FR 13935), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. UT-1034).

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

The public comment period ended on April 14, 1995.

Durings its review of the amendment, OSM identified concerns

relating to the provisions of Utah Admin. R. 645-301-357.340, Utah

Admin. R. 645-301-357.350, and Appendix C of Utah's ``Vegetation

Information Guidelines.'' OSM notified Utah of the concerns by letter

dated May 23, 1995 (administrative record No. UT-1054). Utah responded

in a letter dated June 5, 1995, by submitting a revised amendment that

addressed OSM's concerns (administrative record No. UT-1059).

Based upon the revisions to the proposed program amendment

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

6, 1995, Federal Register (60 FR 35158; administrative record No. UT-

1064). The public comment period closed on July 21, 1995.

III. Director's Findings

Utah submitted an amendment to its program revising Utah Admin. R.

645-301-357.300 through 645-301-357.356 to specify approved normal

husbandry practices that could be implemented without restarting the

period of extended responsibility for successful revegetation (bond

liability period). Utah also proposed to revise its ``Vegetation

Information Guidelines,'' by adding Appendix C, a bibliography of

referenced publications that support the proposed normal husbandry

practices. OSM has previously approved Utah's ``Vegetation Information

Guidelines'' (56 FR 41803, August 23, 1991).

The Federal regulations at 30 CFR 816.116(c)(1) and 817.116(c)(1)

require that the period of extended responsibility for successful

revegetation shall begin after the last year of augmented seeding,

fertilizing, irrigation, or other work, excluding husbandry practices

that are approved

[[Page 47696]]

by the regulatory authority in accordance with the Federal regulations

at 30 CFR 816.116(c)(4) and 817.116(c)(4). The Federal regulations at

30 CFR 816.116(c)(4) and 817.116(c)(4) allow the regulatory authority

to select normal husbandry practices if such practices are expected to

continue as part of the postmining land use or if discontinuance of the

practices after the liability period expires will not reduce the

probability of permanent revegetation success. Such practices must be

normal husbandry practices within the region.

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 February 6, 1995, and as revised by it on June 5,

1995, is no less effective than the Federal regulations at 30 CFR

816.116(c)(1) and (4) and 817.116(c)(1) and (4). Thus, the Director

approves the proposed amendment. OSM's approval of the normal husbandry

practices proposed at Utah Admin. R. 645-301-357.310 through 645-301-

357.356 (findings Nos. 2 through 7 below) is predicated upon

implementation of the general requirements proposed at Utah Admin. R.

645-301-357.301 through 645-301-357.304 (finding No. 1 below) for all

normal husbandry practices.

1. Utah Admin. R. 645.301-357.300, General Requirements for Approval of

Normal Husbandry Practices and Appendix C of Utah's ``Vegetation

Information Guidelines''

Utah proposed, at Utah Admin. R. 645-301-357.301 through 645-301-

357.304, general requirements for mining and reclamation plan approval

of normal husbandry practices. Utah identified in proposed Utah Admin.

R. 645-301-357.310 through 645-301-357.365 (discussed in findings Nos.

2 through 7 below) normal husbandry practices that would not restart

the bond liability period. Utah proposed to include as general

requirements for all such practices (1) that the permittee demonstrate

that husbandry practices proposed for a reclaimed area are not

necessitated by inadequate grading practices, adverse soil conditions,

or poor reclamation procedures, (2) that the permittee consider the

total area within the bond increment when calculating the extent of

area that may be treated by husbandry practices, and (3) if necessary

to seed or plant in excess of the limits set forth in its proposed

rules, a separate extended bond liability period for the reseeded or

replanted areas. Utah's proposed Admin. R. 645-301-357.301 also

includes the requirements that (1) approved practices must be normal

practices for unmined lands within the region which have similar land

uses, (2) discontinuance of the practices after the end of the bond

liability period must not jeopardize permanent revegetation success,

and (3) if a permittee proposes practices that are not identified in

Utah's program, the additional practices would need to be approved as

part of the Utah program in accordance with the Federal regulations at

30 CFR 732.17.

In addition, Utah proposed to revise its ``Vegetation Information

Guidelines,'' by adding Appendix C, a bibliography of referenced

publications that support the normal husbandry practices proposed in

Utah Admin. R. 645-301-357.

The Director finds that Utah's proposed Admin. R. 645-301-357.301

through 645-301-357.304 and Appendix C of Utah's ``Vegetation

Information Guidelines'' are consistent with and no less effective than

the Federal regulations concerning approval of normal husbandry

practices at 30 CFR 816.116(c) (1) and (4) and 817.116(c) (1) and (4).

The Director approves proposed Admin. R. 645-301-357.301 through 645-

301-357.304 and Appendix C in Utah's ``Vegetation Information

Guidelines.''

2. Utah Admin. R. 645-301-357.310 Through 645-301-357.312,

Reestablishing Trees and Shrubs as a Normal Husbandry Practice

Utah proposed, at Utah Admin. R. 645-301-357.310 through 645-301-

357.312, to allow as husbandry practices that would not restart the

bond liability period: (1) Transplanting or reseeding 20 percent of the

stocking rate for trees and shrubs during the first 40 percent, or

through year 4, of the bond liability period; and (2) scalping of small

areas in which to reseed shrubs, with the number of reseeded shrubs

that can be counted towards success of revegetation limited to one per

scalped area.

Utah Admin. R. 645-301-356.232 and the Federal regulations at 30

CFR 816.116(b)(3)(ii) and 817.116(b)(3)(ii) require that trees and

shrubs used in determining the success of stocking shall (1) be

adequate for the plant arrangement, (2) be healthy, and (3) have been

in place for not less than two growing seasons. These regulations also

require that, at the time of bond release, at least 80 percent of the

trees and shrubs used to determine success shall have been in place for

60 percent of the applicable minimum period of responsibility (``the

80/60 requirement'').

Because Utah's proposed rules state that only 20 percent of the

stocking rate for trees and shrubs could be transplanted or reseeded

through year 4 without restarting the liability period, Utah has

ensured that trees and shrubs counted toward revegetation success have

been in place for at least 6 years. This requirement exceeds the two

growing season requirement and ensures that a determination of the 80/

60 requirement can be made in accordance with Utah Admin. R. 645-301-

356.232.

Therefore, the Director finds that Utah's proposed Admin. R.645-

301-357.310 through 645-301-357.312 are consistent with the Federal

regulations at 30 CFR 816.116(b)(3)(ii) and 817.116(b)(3)(ii) and are

no less effective than the Federal regulations concerning approval of

normal husbandry practices at 30 CFR 816.116(c) (1) and (4) and

817.116(c) (1) and (4). The Director approves proposed Utah Admin.

R.645-301-357.310 through 645-301-357.312.

3. Utah Admin. R. 645-301-357.320 through 645-301-357.324, Chemical,

Mechanical, and Biological Weed Control and its Associated Revegetation

as a Normal Husbandry Practice

Utah proposed, at Utah Admin. R. 645-301-357.320 through 645-301-

357.324, to allow as husbandry practices that would not restart the

bond liability period: (1) Chemical weed control following the Weed

Control Handbook, published by the Utah State University Cooperative

Extension Service; (2) mechanical weed control such as hand roguing,

grubbing, and mowing; and (3) biological weed control such as selective

grazing, Utah proposed to require that biological control of weeds

through disease, insects, or other agents must be approved on a case-

by-case basis by Utah and other appropriate agencies which have the

authority to regulate the introduction or use of biological control

agents. In addition, (1) proposed Utah Admin. R. 645-301-357.320 allows

weed control for noxious weeds through the entire liability period and

through the first 2 years of the liability period for other weeds and

(2) proposed Utah Admin. R. 645-301-357.324 allows up to a total of 15

percent of a reclaimed area during the first 2 years of the liability

period to be reseeded or replanted of areas if necessary due to weed

control. After the first 2 years of the liability period, no more than

3 percent of the reclaimed area may be reseeded in any single year and

no reseeding or replanting due to weed control is allowed after the

first 6 years of the liability period, or after Phase II bond release,

whichever comes

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first, without restarting the bond liability period.

Because proposed Utah Admin. R. 645-301-357.320 allows control of

only noxious weeds after the first 2 years of the bond liability

period, Utah's proposed Admin. R. 645-301-357.324, allowing

revegetation of areas damaged due to weed control after year 2 and

through year 6 of the bond liability period, or through phase II bond

release, applies only to the control of noxious weeds After year 6 of

the bond liability period, or after phase II bond release, whichever

comes first, any revegetation due to treatment of noxious or other

weeds would restart the bond liability period. Prohibiting revegetation

due to treatment of weeds after year 6 or after phase II bond release

ensures that the permittee can demonstrate that the established

vegetation is permanent and otherwise meets the general requirements

for success of revegetation in the Federal regulations at 30 CFR

816.111 and 817.111.

The Director finds that Utah's proposed Admin. R. 645-301-357.320

through 645-301-357.324 are no less effective than the Federal

regulations concerning approval of normal husbandry practices at 30 CFR

816.116(c) (1) and (4) and 817.116(c) (1) and (4). The Director

approves proposed Admin. R. 645-301-357.320 through 645-301-357.324.

4. Utah Admin. R. 645-301-357.330 Through 645-301-357.332, Control of

Pests Such as Big Game, Small Mammals, and Insects as a Normal

Husbandry Practice

Utah proposed at Utah Admin. R. 645-301-357.330 through 645-301-

357.332 to allow, as husbandry practices that would not restart the

bond liability period, (1) control of big game and small mammals,

approved on a case-by-case basis by Utah, the Utah Division of Wildlife

Resources, and the appropriate land management agency or agencies,

during the first 6 years of the liability period of until Phase II bond

release, whichever comes first, and (2) control of insects throughout

the liability period if it is determined, through consultation with an

approval from the Utah Department of Agriculture or Cooperative

Extension Service and the appropriate land management agency or

agencies, that a specific practice is being performed on adjacent

unmined lands.

Approvals by the Utah Division of Wildlife Resources, the

appropriate land management agency or agencies, and/or the Utah

Department of Agriculture or Cooperative Extension Service ensure that

appropriate control methods will be used. Limiting such control to the

first 6 years of the liability period or until phase II bond release

allows the affected vegetation to become established. Prohibiting

implementation of these control methods after year 6 or after phase II

bond release ensures that the permittee can demonstrate that the

established vegetation is permanent and otherwise meets the general

requirements for success of revegetation in the Federal regulations at

30 CFR 816.111 and 817.111.

The Director finds that the Utah's proposed Admin. R. 645-301-

357.330 through 645-301-357.332 are no less effective than the Federal

regulations concerning approval of normal husbandry practices at 30 CFR

816.116(c) (1) and (4) and 817.116(c) (1) and (4). The Director

approves proposed Admin. R. 645-301-357.320 through 645-301-357.324.

5. Utah Admin. R. 645-301-357.340 Through 645-301-357.343, Repair of

Vegetation Due to Natural Disasters and Illegal Activities Occurring

After Phase II Bond Release as a Normal Husbandry Practice

Utah proposed, at Utah Admin. R. 645-301-357.340 through 645-301-

357.343, to allow as a husbandry practice that would not restart the

liability period the seeding and planting of areas significantly

affected by a natural disaster, such as wildfires, earthquakes, and

mass movement originating outside the disturbed area but excluding

climatic variation; or illegal activities, such as vandalism, which are

not caused by any lack of planning, design, or implementation of the

mining and reclamation plan on the part of the permittee. In addition,

Utah will only allow such repair if the damage occurs after phase II

bond release and requires that all applicable revegetation success

standards must be achieved on the repaired areas.

Although Utah's proposed rules provide that repair of damaged

revegetation caused by such natural disasters and illegal activities

will not restart the liability period, the liability period may in fact

be extended if the bond release area is not able to meet all applicable

revegetation success standards. In addition, because Utah excluded

climatic variation from consideration as a natural disaster, the

permittee is not excused from demonstrating establishment of a diverse,

effective, and permanent vegetative stand during normal periods of

drought. Utah's allowance for such repair to occur without restarting

the bond liability period after phase II bond release provides an

incentive for permittees to seek and obtain phase II bond release.

Because the repair of vegetated areas would be necessitated on

similar unmined land in the region if the same damage occurred, the

Director finds that Utah's proposed Admin. R. 645-301-357.340 through

645-301-357.343 are not less effective than the Federal regulations

concerning approval of normal husbandry practices at 30 CFR 816.116(c)

(1) and (4) and 817.116(c) (1) and (4). The Director approves proposed

Admin. R. 645-301-357.340 through 645-301-357.343.

6. Utah Admin. R. 645-301-357.350, Irrigation of Transplanted Trees and

Shrubs as a Normal Husbandry Practice

Utah proposed, at Utah Admin. R. 645-301-357.350, to allow

irrigation of transplanted trees and shrubs as a husbandry practice

that would not restart the bond liability period. Utah also submitted a

letter from the U.S. Forest Service, Department of Agriculture, dated

April 8, 1994, documenting that irrigation of seedlings during the

first growing season is a common practice in establishing trees and

shrubs.

Utah demonstrated that irrigation of trees and shrubs is a common

practice within the region for unmined lands having land similar to the

approved postmining land use of the disturbed area. Because Utah

limited irrigation of transplanted trees and shrubs to the first 2

years of the liability period, Utah has ensured that discontinuance of

the practice will not effect the demonstration of permanent

revegetation success.

The Director finds that Utah's proposed Admin. R. 645-301-357.350

is not less effective than the Federal regulations concerning approval

of normal husbandry practices to 30 816.116(c) (1) and (4)

and817.116(c) (1) and (4). The Director approves proposed Admin. R.

645-301-357.350.

7. Utah Admin. R. 645-301-357.360 Through 645-301-357.365, Highly

Erodible Area and Rill and Gully Repair as a Normal Husbandry Practice

Utah proposed, at Utah Admin. R. 645-301-357.340 through 645-301-

357.343, to allow as a husbandry practice that would not restart the

liability period the repair of highly erodible areas and rills and

gullies during the first 20 percent of the bond liability period, if

the affected area comprises no more than 15 percent of the disturbed

area and if no continuous area to be repaired is larger than one acre.

Furthermore, Utah proposed that after the first 20 percent of the bond

[[Page 47698]]

liability period but prior to the end of the first 60 percent of the

liability period or until Phase II bond release (whichever comes

first), the repair of any areas greater than 3 percent of the total

disturbed area or any continuous area larger than 1 acre will be

considered augmentative and will restart the liability period. After

the end of the first 60 percent of the liability period or after Phase

II bond release, and rill and gully repair would restart the liability

period. Utah also submitted as copy or the U.S. Nation Resource

Conservation Service (NRCS) Critical Area Planting Guide for the State

of Utah.

Because Utah has clearly and reasonably defined when an operator

must consider the repair of rills and gullies an augmentative practice

that would restart the liability period and submitted NRCS

documentation which demonstrates that the repair of rills and gullies

are supported by NRCS as an acceptable land management technique for

similar situations in the State of Utah, the Director finds that Utah's

proposal for the repair or fills and gullies as a normal husbandry

practice is not less effective than the Federal regulations at 30 CFR

816.116(c)(4) and 817.116(c)(4). The Director approves Utah Admin. R.

645-301-357.340 through 645-301-357.343.

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSMs responses to

them.

1. Public Comments

OSM invited public comments on the proposed amendment, 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.

The U.S. Bureau of Mines responded on March 10, 1985, that it has

no comments on the proposed amendment (administrative record No. UT-

1030).

The U.S. Army Corps of Engineers responded on March 15 and July 12,

1995, that it found the proposed amendment to be satisfactory

(administrative record Nos. UT-1033 and UT-1069).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(b)(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

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

request EPA's concurrence.

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

proposed amendment from EPA (administrative record No. UT-1027). EPA

did not responded to OSM's request.

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-1027). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on findings nos. 1 through 7, the Director approves the

proposed amendment concerning normal husbandry practices as submitted

by Utah on February 6, 1995, and as revised on June 5, 1995.

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 12866 (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 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.

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 of 1969 (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. 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

assumption for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 944

Intergovernmental relations, Surface mining, Underground mining.

[[Page 47699]]

Dated: September 6, 1995.

Richard J. Seibel,

Regional Director, Western Regional Coordinating 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 (gg) to read as

follows:

Sec. 944.15 Approval of amendments to the Utah regulatory program.

* * * * *

(gg) The following revisions to or additions of the following

sections of the Utah Administrative Rules (Utah Admin. R.) for Coal

Mining, and the addition of Appendix C, to Utah's ``Vegetation

Information Guidelines,'' as submitted to OSM on February 6, 1995, and

revised on June 5, 1995, are approved effective September 14, 1995.

[FR Doc. 95-22865 Filed 9-13-95; 8:45 am]

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