[Federal Register Volume 61, Number 172 (Wednesday, September 4, 1996)]
[Rules and Regulations]
[Pages 46550-46552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22524]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
30 CFR Part 944
[SPATS No. UT-034]
Utah Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is announcing approval of a proposed amendment to the Utah
regulatory program (hereinafter, the ``Utah program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
proposed amendment consists of revisions to rules pertaining to
petitions to initiate rulemaking, and backfilling and grading and
highwall retention. The amendment revises the Utah program to be
consistent with the corresponding Federal regulations.
EFFECTIVE DATE: September 4, 1996.
FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Telephone: (303) 672-5524.
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. Proposed Amendment
By letter dated November 30, 1995, and March 11, 1996, Utah
submitted to OSM rules that it had promulgated for its program
(administrative record Nos. UT-1079 and UT-1081) pursuant to SMCRA (30
U.S.C. 1201 et seq.). With three exceptions, these rules were
substantively identical to rules that
[[Page 46551]]
Utah had previously submitted to OSM and for which the Director made a
decision in the May 30, 1995, Federal Register (60 FR 28040,
administrative record No. UT-1057). The three exceptions occurred in
rules that Utah revised in response to required amendments and in
response a disapproval that OSM set forth in the May 30, 1995, notice.
In response to the required program amendments at 30 CFR 944.16 (c) and
(d) (May 30, 1995, 60 FR 28040, 28043-4, finding Nos. 4 and 5), Utah
proposed to revise Utah Admin. R. 645-301-553.110 and Utah Admin. R.
534-301-553.120. In response to the Director not approving proposed
Utah Admin. R. 645-301-553.651 (May 30, 1995, 60 FR 28040, 28046-7,
finding No. 15), Utah did not promulgate the rule. The rule concerned a
proposed applicability date for the backfilling and grading of
highwalls.
In addition to the aforementioned revisions, Utah by letter dated
December 4, 1995, submitted to OSM a proposed revision to Utah Admin.
R. 645-100-500, pertaining to petitions to initiate rulemaking
(administrative record No. UT-1080). Utah submitted the proposed
revision in response to a November 22, 1995, OSM letter (administrative
record No. UT-1078) notifying Utah of a needed revision to Utah's rule.
These revisions constitute a proposed amendment to Utah's program.
OSM announced receipt of the proposed amendment in the March 20, 1996,
Federal Register (61 FR 11350), provided an opportunity for a public
hearing or meeting on its substantive adequacy, and invited public
comment on its adequacy (administrative record No. UT-1085). Because no
one requested a public hearing or meeting, none was held. The public
comment period ended on April 19, 1996.
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 November 30 and December 4, 1995, and March 11,
1996, is no less effective than the corresponding Federal regulations
and no less stringent than SMCRA. Accordingly, the Director approves
the proposed amendment.
1. Utah Admin. R. 645-100-500, Petitions To Initiate Rulemaking
Utah proposed to revise Utah Admin. R. 645-100-500 to provide that
persons other than the Division or Board of Oil, Gas and Mining may
petition to initiate rulemaking pursuant to Utah Admin. R. Part 641 and
the Utah Administrative Rulemaking Act at Utah Code Annotated (U.C.A.)
``63-46a-1, et seq.'' instead of ``63-46-8.''
Utah deleted the reference to the statute at U.C.A. 63-46-8 because
it previously repealed it. Newly referenced ``U.C.A. 63-46a-1 et seq.''
includes the statutory provisions at U.C.A. 63-46a-12, which allow
interested persons to petition agencies requesting the making,
amendment, or repeal of rules.
The Federal counterpart regulation to proposed Utah Admin. R. 645-
100-500 is at 30 CFR 700.12. The Federal counterpart statutory
provision to U.C.A. 63-46a-12 is at section 201(g)(1) of SMCRA. They
both provide for persons to petition OSM requesting the issuance,
amendment, or repeal of a rule.
The proposed revision to Utah Admin. R. 645-100-500 is no less
effective than the Federal regulations at 30 CFR 700.12 and no less
stringent than section 201(g)(1) of SMCRA. Therefore, the Director
approves the proposed revision to Utah Admin. R. 645-100-500.
2. Utah Admin. R. 645-301-553.110 and .120, Backfilling and Grading and
Highwall Retention
Utah Admin. R. 645-301-553.110.--On May 30, 1995, OSM at 30 CFR
944.16(c) (finding No. 4, 60 FR 28040, 28043) required Utah to revise
Utah Admin. R. 645-301-553.110 to correct the cross referenced
provisions in the phrase ``R645-301-500 through R645-301-540,''
regarding previously mined areas, continuously mined areas, and areas
subject to the approximate original contour provisions, to read ``R645-
301-553.500 through R645-301-553.540'' (emphasis added).
In response to the required amendment, Utah proposed to make the
changes in the citations. For the reasons discussed in the May 30,
1995, Federal Register notice, the Director finds that the proposed
revisions to Utah Admin. R. 645-301-553.110 are consistent with the
Federal regulations at 30 CFR 816.102(k) and 817.102(k). Accordingly,
the Director approves the proposed revisions to Utah Admin. R. 645-301-
553.110 and removes the required amendment at 30 CFR 944.16(c).
Utah Admin. R. 534-301-553.120.--On May 30, 1995, OSM at 30 CFR
944.16(d) (finding No. 5, 60 FR 28040, 28043) required Utah to revise
Utah Admin. R. 645-301-553.120 to correct the cross-referenced
provisions in the phrase ``R645-301-553.500 through R645-301-540,''
regarding previously mined areas, continuously mined areas, and areas
subject to the approximate original contour provisions, to read ``R645-
031-553.500 through R645-301-553.540'' (emphasis added). In response to
the required amendment, Utah made the revision in the citation.
OSM also at 30 CFR 944.16(d) required Utah to revise Utah Admin. R.
645-301-553.120 to correct the cross-referenced provisions in the
phrase ``R645-301-553.650 through R645-301-553.653'' to read ``R645-
301-553.650 through R645-301-553.651'' (emphasis added), or otherwise
make a revision that had the same effect. As discussed in following
finding No. 4, Utah did not promulgate Utah Admin. R. 645-301-553.651.
Therefore, at Utah Admin. R. 645-301-553.120, Utah proposed to only
reference Utah Admin. R. 645-301-553.650.
For the reasons discussed in the May 30, 1995, Federal Register
notice, the Director finds that the proposed revisions to Utah Admin.
R. 645-301-553.120 are consistent with the Federal regulations at 30
CFR 816.102(a)(2) and 817.102(a)(2). Accordingly, the Director approves
the proposed revisions to Utah Admin. R. 645-301-553.120 and removes
the required amendment at 30 CFR 944.16(d).
3. Utah Admin. R. 645-301-553.651, Applicability Date
On May 30, 1995, the Director did not approve Utah's proposed rule
at Utah Admin. R. 645-301-553.651 (finding No. 15, 60 FR 28040, 28046)
because it was less stringent than section 515 of SMCRA, not in
accordance with the Secretary's assumptions in approving the provisions
of the Utah program that allow for the incomplete elimination of
highwalls for areas with remaining highwalls subject to the approximate
original contour provisions, and not in accordance with the Director's
previous finding in the September 17, 1993, final rule Federal Register
notice (58 FR 48600, 48605-6; finding No. 3(C)(3)(b)).
In response to this disapproval, Utah deleted the proposed rule at
Utah Admin. R. 645-301-553.651 (i.e., did not promulgate the rule in
the State rulemaking process). Utah's deletion of the proposed rule is
consistent with the Director's disapproval.
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
[[Page 46552]]
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 (administrative record No. UT-
1082). None of the Federal agencies responded.
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 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. UT-1082). It did
not respond 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-1082). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves Utah's proposed
amendment as submitted on November 30 and December 4, 1995, and March
11, 1996.
The Director approves, as discussed in: finding No. 1, Utah Admin.
R. 645-100-500, concerning petitions to initiate rulemaking; and
finding No. 2, Utah Admin. R. 645-301-553.110 and .120, concerning
backfilling and grading and highwall retention.
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 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (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 (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.
6. Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 944
Intergovernmental relations, Surface mining, Underground mining.
Dated: August 21, 1996.
Peter A. Rutledge,
Acting 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 (hh) to read as
follows:
Sec. 944.15 Approval of amendments to the State regulatory program.
* * * * *
(hh) Revisions to Utah Admin. R. 645-100-500, concerning petitions
to initiate rulemaking, and revisions to Utah Admin. R. 645-301-553.110
and Utah Admin. R. 534-301-553.120, concerning backfilling and grading
and highwall retention, as submitted to OSM on November 30 and December
4, 1995, and March 11, 1996, are approved effective September 4, 1996.
Sec. 944.16 [Amended]
3. Section 944.16 is amended by removing and reserving paragraphs
(c) and (d).
[FR Doc. 96-22524 Filed 9-3-96; 8:45 am]
BILLING CODE 4310-05-M