Utah Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 944

Utah Permanent 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, 30

U.S.C. 1201 et seq.). Utah proposed revisions to its rules pertaining

to the confidentiality of coal exploration information. The amendment

is intended to revise the Utah program to be consistent with the

corresponding Federal regulations.

EFFECTIVE DATE: March 27, 1995.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program

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

approved the Utah program for the regulation of coal exploration and

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

lands. General background information on the Utah program, including

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

explanation of the conditions of approval of the Utah program can be

found in the January 21, 1981, Federal [[Page 15681]] 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 9, 1994, Utah submitted a proposed

amendment to its program pursuant to SMCRA and the Federal regulations

at 30 CFR chapter VII (administrative record No. UT-971). Utah

submitted the proposed amendment in response to the required program

amendment at 30 CFR 944.16(a) (59 FR 35255, 35258-9, July 11, 1994).

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

revise were at Utah Administrative Rule (Utah Admin. R.) 645-203-200

and pertain to the public availability and confidentiality of coal

exploration information.

OSM announced receipt of the proposed amendment in the September

27, 1994, Federal Register (59 FR 49227), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (Administrative Record No. UT-976).

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

The public comment period ended on October 27, 1994.

During its review of the amendment, OSM identified concerns

relating to the proposed provisions of Utah's rule. OSM notified Utah

of the concerns by letter dated November 15, 1994 (administrative

record No. UT-991). Utah responded in a letter dated January 5, 1995,

by submitting a revised amendment and additional explanatory

information (Administrative Record No. UT-1003).

Based upon the revisions of and the additional explanatory

information for the proposed amendment submitted by Utah, OSM reopened

the public comment period in the January 24, 1995, Federal Register (60

FR 4581, Administrative Record No. UT-1009). The public comment period

ended February 8, 1995.

III. Director's Findings

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

CFR 732.15 and 732.17, finds that the proposed program amendment

submitted by Utah on September 9, 1994, and as revised by it and

supplemented with additional explanatory information on January 5,

1995, is no less effective than the corresponding Federal regulations.

Accordingly, the Director approves the proposed amendment.

Utah Admin. R. 645-203-200, Public Availability and Confidentiality of

Coal Exploration Information

In response to the required amendment at 30 CFR 944.16(a) Utah

proposed to revise its coal exploration rule at Utah Admin. R. 645-203-

200 concerning the obligation of the State to keep information

submitted with a coal exploration permit application confidential. As

proposed, the rule would provide that--

[T]he Division [of Oil, Gas and Mining] will not make

information available for public inspection, if the person

submitting it requests in writing, at the time of submission, that

it not be disclosed and the information concerns trade secrets or is

privileged commercial or financial information relating to the

competitive rights of the persons intending to conduct coal

exploration.

(emphasis added).

Proposed Utah Admin. R. 645-203-200 includes two confidentiality

criteria that are joined by the word ``and.'' The first criteria is

that the person submitting the information request that the information

be kept confidential. The second criterion is that the information

concern trade secrets or other privileged commercial or financial

information relating to the competitive rights of the person intending

to conduct coal exploration operations. Both criteria must be satisfied

before Utah would keep coal exploration confidential. Proposed Utah

Admin. R. 645-203-200 contains the same confidentiality requirements as

are contained in the counterpart Federal regulation at 30 CFR

772.15(b).

However, the second criterion of proposed Utah Admin. R. 645-203-

200, which requires that the information the applicant wishes to remain

confidential must concern trade secrets or other privileged commercial

information, is already present in the Utah program at existing Utah

Admin. R. 645-203-210. This provision of the Utah program provides

that--

[T]he Division will keep information confidential if it concerns

trade secrets or is privileged commercial or financial information

which relates to the competitive rights of the person intending to

conduct coal exploration.

By letter dated November 15, 1994, OSM asked Utah to clarify what

effect, if any, the similarity between these two provisions would have

on the implementation of Utah's coal exploration rules. By letter dated

January 5, 1995, Utah responded that the existing rule at Utah Admin.

R. 645-203-210 would only apply in situations where the first criterion

of Utah Admin. R. 645-203-200 also applied. Under this interpretation,

the existing provision at Utah Admin. R. 645-203-210 is simply extra

regulatory language that is redundant with the second criterion in

proposed Utah Admin. R. 645-203-200. This redundant language does not

render proposed Utah Admin. R. 645-203-200 less effective than the

corresponding Federal regulation at 30 CFR 772.15(b).

Because proposed Utah Admin. R. 645-203-200 and existing Utah

Admin. R. 645-203-210, concerning the public availability and

confidentiality of coal exploration information, require the same

criteria in determining whether coal exploration information is to be

kept confidential and provide for the same responsibility in keeping

such information confidential as does 30 CFR 772.15(b), the Director

finds that proposed Utah Admin. R. 645-203-200 is no less effective

than 30 CFR 772.15(b). The Director approves the proposed rule and

removes the required amendment at 30 CFR 944.16(a).

IV. Summary and Disposition of Comments

Following are summaries of all oral and written comments on the

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

them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Federal Agency Comments

Pursuant to 30 CFR 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. Army Corps of Engineers responded on October 12, 1994, and

January 31, 1995, that it found the changes to be satisfactory

(administrative record Nos. UT-981 and UT-1018).

By memorandum dated October 26, 1994, the U.S. Fish and Wildlife

Service stated that it had reviewed the changes and had found nothing

that would be detrimental to fish and wildlife resources

(administrative record No. UT-986).

By letter dated January 6, 1995, the Mine Safety and Health

Administration (MSHA) stated that MSHA personnel had reviewed the

amendment and that there appeared to be no conflicts with the

requirements of 30 CFR pertaining to coal mine safety and health

(administrative record No. UT-1004).

The Bureau of Mines responded in a telephone conversation on

January 18, 1995, that it had no comments on the

[[Page 15682]] proposed amendment (administrative record No. UT-1007).

3. Environmental Protection Agency (EPA) Concurrence and Comments

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

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

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions that Utah proposed to make in its amendment

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

request EPA's concurrence.

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

proposed amendment from EPA (administrative record Nos. UT-972 and UT-

1008). It responded on September 29, 1994, and February 1, 1995

(administrative record Nos. UT-975 and UT-1017), that it had no

comments on the amendment and that it believed there would be no

impacts to water quality standards promulgated under authority of the

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

4. State Historic Preservation Officer (SHPO)

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

proposed amendment from the SHPO (administrative record Nos. UT-972 and

UT-1008). The SHPO did not respond to OSM's requests.

V. Director's Decision

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

amendment as submitted on September 9, 1994, and as revised by it and

supplemented with additional explanatory information on January 5,

1995.

The Director approves Utah Admin. R. 645-203-200, concerning the

confidentiality of coal exploration information, and removes 30 CFR

944.16(a), which required Utah to revise this rule. The Director

approves the rule as proposed by Utah with the provision that it be

fully promulgated in identical form to the rule submitted to and

reviewed by OSM and the public.

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 final rule is exempted from review by the Office of Management

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

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments since each such program is drafted and promulgated

by a specific State, not by OSM. Under sections 503 and 505 of SMCRA

(30 U.S.C. 1253 and 1255) 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. 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 Part 944

Intergovernmental relations, Surface mining, Underground mining.

Dated: March 20, 1995.

Charles E. Sandberg,

Acting Assistant Director, Western Support Center.

For the reasons set out in the preamble, title 30, chapter VII,

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

below:

PART 944--UTAH

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

follows:

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

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

follows:

Sec. 944.15 Approval of amendments to State regulatory program.

* * * * *

(cc) Revisions to Utah Admin. R. 645-203-200, confidentiality of

coal exploration information, as submitted to OSM on September 9, 1994,

and as revised and supplemented with additional explanatory information

on January 5, 1995, are approved effective March 27, 1995.

Sec. 944.16 [Amended]

3. Section 944.16 is amended by removing and reserving paragraph

(a).

[FR Doc. 95-7436 Filed 3-24-95; 8:45 am]

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