[Federal Register Volume 60, Number 178 (Thursday, September 14, 1995)]
[Rules and Regulations]
[Pages 47695-47699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22865]
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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
[[Page 47697]]
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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