[Federal Register Volume 69, Number 190 (Friday, October 1, 2004)]
[Proposed Rules]
[Pages 58873-58875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22017]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

[CO-033-FOR]


Colorado Regulatory Program

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

ACTION: Proposed rule; reopening and extension of public comment period 
on proposed amendment.

-----------------------------------------------------------------------

SUMMARY: We are announcing receipt of additional revisions pertaining 
to a previously proposed amendment to the Colorado regulatory program 
(hereinafter, the ``Colorado program'') under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act). The additional 
revisions were submitted by Colorado July 23, 2003. Colorado proposes 
revisions to require a weed management plan as part of the permit 
application, and as part of the cropland revegetation success criteria, 
to consider crop production for two of the last four years of the 
liability period, but not consider crop production prior to year nine 
of the liability period and with respect to annual grain crops for 
which the cropping cycle may incorporate a summer fallow year, two of 
the last four cropping years will be considered.

DATES: We will accept written comments on this amendment until 4 p.m., 
m.d.t. October 18, 2004.

ADDRESSES: You may submit comments, identified by Docket No. CO-033-
FOR, by any of the following methods:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#8ae0ececffe6fee5e4cae5f9e7f8efa4ede5fc"><span class="__cf_email__" data-cfemail="472d2121322b3328290728342a352269202831">[email protected]</span></a>. Include ``Docket No. CO-033-
FOR'' in the subject line of the message;
    <bullet> Mail: James F. Fulton, Chief, Denver Field Division, OSM, 
P.O. Box 46667, Denver, CO 80201-6667;
    <bullet> Hand delivery: James F. Fulton, Chief, Denver Field 
Division, OSM, 1999 Broadway, Suite 3320, Denver, CO 80202-5733;
    <bullet> Fax: (303) 844-1545; and
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.

Instructions: All submissions received must include the agency name and 
docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.

Docket: For access to the docket to review copies of the Colorado 
program, this amendment, and all written comments received in response 
to this document, you must go to the addresses listed below during 
normal business hours, Monday through Friday, excluding holidays. You 
may receive one free copy of the amendment by contacting OSM's Denver 
Field Division.
    In addition, you may review a copy of the amendment during regular 
business hours by contacting the following individuals at their 
respective locations:

James F. Fulton, Chief, Denver Field Division, Office of Surface Mining 
Reclamation and Enforcement, P.O. Box 46667, Denver, CO 80201-6667. 
(303) 844-1400, extension 1424.
David A. Berry, Coal Program Supervisor, Colorado Division of Minerals 
and Geology, 1313 Sherman Street Room 215, Denver, Colorado 80203. 
Telephone: (303) 866-3873.

FOR FURTHER INFORMATION CONTACT: James F. Fulton, telephone: (303) 844-
1400, ext. 1424, e-mail address: <a href="/cdn-cgi/l/email-protection#7f15190a130b10113f100c120d1a51181009"><span class="__cf_email__" data-cfemail="d3b9b5a6bfa7bcbd93bca0bea1b6fdb4bca5">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Background on the Colorado Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Colorado Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Colorado program on December 15, 1980. You 
can find background information on the Colorado program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval of the Colorado program in the December 15, 1980, Federal 
Register (45 FR 82173). You can also find later actions concerning 
Colorado's program and program amendments at 30 CFR 906.15, 906.16, and 
906.30.

II. Description of Proposed Amendment

    By letter dated March 27, 2003, Colorado sent us a proposed

[[Page 58874]]

amendment to its program pursuant to SMCRA (State Amendment Tracking 
System number C0-033-FOR), administrative record number C0-696-1, under 
SMCRA (30 U.S.C. 1201 et seq.). Colorado sent the proposed amendment in 
response to the letters that we sent it in accordance with 30 CFR 
732.17(c) on May 7, 1986, June 9, 1987, and March 22, 1990. The 
amendment concerns prime farmland, revegetation, hydrology, 
enforcement, topsoil, historic properties, and bond release 
requirements. On April 4, 2003, Colorado sent us an addition to its 
March 27, 2003, program amendment. It amended Rule 4.15.8(3)(a); 
Revegetation Success Criteria.
    In the June 3, 2003, Federal Register (68 FR 33032), we announced 
receipt of the March 27, 2003, proposed amendment and its April 4, 
2003, addition, provided an opportunity for a public hearing or meeting 
on its substantive adequacy, and invited public comment on its 
adequacy. Because no one requested a public hearing or meeting, none 
was held. The public comment period ended on July 3, 2003. We received 
comments from one Federal agency.
    By letter dated July 23, 2003, Colorado submitted additional 
revisions to the amendment. These proposed revisions added a 
requirement for a weed management plan and revised provisions 
pertaining to revegetation success for cropland. We announced these 
revisions and provided a shortened comment period in the Federal 
Register dated November 20, 2003 (68 FR 65422).
    By letters dated September 1, 2004, and September 4, 2004, the 
Rocky Mountain Director of Public Employees for Environmental 
Responsibility (PEER) requested that we reopen the comment period for 
the proposed amendment submitted by Colorado on July 23, 2003. PEER 
stated that our notice was incorrect in its explanation of the 
amendment and that it failed to include the full text of the amendment 
as required by 30 CFR 732.17(h) for shortened comment periods. With 
this notice, we are publishing the full text of Colorado's July 23, 
2003, submission.
    In its July 23, 2003, submittal, Colorado proposes revisions to 
rule Rule 4.15.1, Weed Management Plan; Rule 4.15.9, Revegetation 
Success Criteria: Cropland; and Rule 1.04(78), Definition of Noxious 
Weeds. The full text of the proposed revision is as follows, with the 
bracketed language to be removed and the italicized language to be 
added:
    Amend Rule 4.15.1 by adding (5) as follows:

    (5) Each operator shall submit a weed management plan that will 
become part of the permit requirements. Species to be considered 
shall be noxious weeds as set forth in the permit. The plan shall 
also address invasion of other weed species that seriously threaten 
the continued development of desired vegetation. Weed control 
methods shall also be used whenever the inhabitation of the 
disturbed area by weeds threatens further spread of weeds to nearby 
areas.

    Amend Rule 1.04(78) as follows:

    ``Noxious [plants] weeds'' means species that have been included 
on official State or county lists of noxious [plants] weeds.

    Amend Rule 4.15.9 as follows:

    4.15.9 Revegetation Success Criteria: Cropland. For areas to be 
used as cropland, success of revegetation shall be determined on the 
basis of crop production from the mined area as compared to approved 
reference areas or other approved standard(s). Crop production from 
the mined area shall not be less than that of the approved reference 
area or standard for [the last] two of the last four years of the 
[extended] liability period established in 3.02.3. Crop production 
shall not be considered prior to year nine of the liability period. 
With respect to annual grain crops for which the cropping cycle may 
incorporate a summer fallow year, two of the last four cropping 
years will be considered. This liability period shall commence on 
the date of initial planting of the crop being grown. Production 
shall be considered equal if it is not less than 90% of the 
production as determined from the reference area or approved 
standard with 90% statistical confidence.

III. Public Comment Procedures

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations. In the final rulemaking, we will not necessarily 
consider or include in the administrative record any comments received 
after the time indicated under DATES or at locations other than the 
Denver Field Division.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: SATS No. CO-033-FOR'' and your name and return address 
in your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact the Denver Field Division 
at (303) 844-1400, ext. 1441.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 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 because 
each 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.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and

[[Page 58875]]

reclamation operations. One of the purposes of SMCRA is to ``establish 
a nationwide program to protect society and the environment from the 
adverse effects of surface coal mining operations.'' Section 503(a)(1) 
of SMCRA requires that State laws regulating surface coal mining and 
reclamation operations be ``in accordance with'' the requirements of 
SMCRA, and section 503(a)(7) requires that State programs contain rules 
and regulations ``consistent with'' regulations issued by the Secretary 
pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian Tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian Tribes. 
The rule does not involve or affect Indian Tribes in any way.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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)).

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.).

Regulatory Flexibility Act

    The Department of the Interior certifies 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, which 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. 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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: a. does not 
have an annual effect on the economy of $100 million; b. will not cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and c. does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S. based enterprises to compete with foreign-based 
enterprises.
    This determination is based upon the fact that the State submittal 
which is the subject of this rule is based upon counterpart Federal 
regulations for which an analysis was prepared and a determination made 
that the Federal regulation was not considered a major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 906

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 15, 2004.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.
[FR Doc. 04-22017 Filed 9-30-04; 8:45 am]
BILLING CODE 4310-05-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>