28040 Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations

those countries entitled to reciprocal

privileges and designates the extent of

the exemptions allowed.

In accordance with 19 U.S.C. 1309(d),

the Deputy Assistant Secretary for

Service Industries and Finance,

International Trade Administration,

Department of Commerce, has advised

the Customs Service by letter dated

April 17, 1995, that following an

appropriate investigation, it has been

found that the Governments of Abu

Dhabi, Bahrain, Oman and Qatar allow

or would allow to aircraft of United

States registry exemption privileges, in

connection with international

commerce operations, substantially

reciprocal to those exemption privileges

provided to aircraft of foreign registry by

sections 309 and 317 of the Tariff Act

of 1930, as amended. The effective date

of this finding is June 1, 1994.

This document amends the list in

§ 10.59(f), Customs Regulations (19 CFR

10.59(f)) by adding Abu Dhabi, Bahrain,

Oman and Qatar to the list of countries

entitled to reciprocal privileges.

Authority to amend this section of the

Customs Regulations has been delegated

to the Chief, Regulations Branch.

Inapplicability of Public Notice and

Comment Requirements, Delayed

Effective Date Requirements, the

Regulatory Flexibility Act, and

Executive Order 12866

Because the subject matter of this

document does not constitute a

departure from established policy or

procedures, but merely announces the

granting of an exemption for which

there is a statutory basis, it has been

determined, pursuant to 5 U.S.C.

553(b)(B), that the notice and public

comment procedures thereon are

unnecessary. Further, for the same

reasons and because Abu Dhabi,

Bahrain, Oman and Qatar have been

found to be presently granting

reciprocal exemption privileges to U.S.-

registered aircraft, it has been

determined, pursuant to 5 U.S.C.

553(d)(1) and (3), that a delayed

effective date is not required. Because

this document is not subject to the

notice and public procedure

requirements of 5 U.S.C. 553, it is not

subject to the provisions of the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.). This document does not meet

the criteria for a ‘‘significant regulatory

action’’ as specified in E.O. 12866.

List of Subjects in 19 CFR Part 10

Aircraft, Customs duties and

inspection, Exports, Imports, Reporting

and recordkeeping requirements.

Amendment to the Regulations

To reflect the reciprocal privileges

granted to aircraft registered in Abu

Dhabi, Bahrain, Oman and Qatar, part

10, Customs Regulations (19 CFR part

10) is amended as set forth below:

PART 10—ARTICLES CONDITIONALLY

FREE, SUBJECT TO A REDUCED

RATE, ETC.

1. The authority citation for part 10

continues to read, in part, as follows:

Authority: 19 U.S.C. 66, 1202 (General

Note 20, Harmonized Tariff Schedule of the

United States (HTSUS)), 1321, 1481, 1484,

1498, 1508, 1623, 1624;

* * * * *

Section 10.59 also issued under 19 U.S.C.

1309, 1317;

* * * * *

§ 10.59 [Amended]

2. Section 10.59(f) is amended in the

table by adding to the column headed

‘‘Country’’, in appropriate alphabetical

order, ‘‘Abu Dhabi’’, ‘‘Bahrain’’,

‘‘Oman’’, and ‘‘Qatar’’ and by adding

‘‘95–45’’ adjacent to the names of the

above-listed countries in the column

headed ‘‘Treasury Decision(s)’’.

Dated: May 23, 1995.

Harold M. Singer,

Chief, Regulations Branch.

[FR Doc. 95–13070 Filed 5–26–95; 8:45 am]

BILLING CODE 4820–02–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 944

Utah Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: OSM is approving, with an

exception and additional requirements,

a proposed amendment to the Utah

regulatory program (hereinafter referred

to as the ‘‘Utah program’’) under the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). Utah

proposed revisions to and additions of

rules pertaining to retention of

highwalls in the postmining landscape.

Utah submitted the amendment with the

intent of revising its program to be

consistent with the corresponding

Federal regulations, clarifying

ambiguities, and improving operational

efficiency.

EFFECTIVE DATE: May 30, 1995.

FOR FURTHER INFORMATION CONTACT:

Arthur W. Abbs, Acting Director,

Albuquerque Field Office, 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. 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 12, 1993,

Utah submitted a proposed amendment

to its program pursuant to SMCRA

(administrative record No. UT–875).

Utah submitted the proposed

amendment at its own initiative and in

response to the required State program

amendments codified at 30 CFR 944.16

(a), (b), (c), and (d). The provisions of

the Utah Administrative Rules (Utah

Admin. R.) that Utah proposed to revise

were: Utah Admin. R. 645–301–553.200,

spoil and waste; Utah Admin. R. 645–

301–553.252, refuse piles; Utah Admin.

R. 645-301–553.500, previously mined

areas (PMA’s), continuously mined

areas (CMA’s), and areas subject to the

approximate original contour (AOC)

requirements; Utah Admin. R. 645–301–

553.520, exception from complete

highwall elimination for CMA’s; Utah

Admin. R. 645–301–553.523, stability

criteria for highwall remnants and

retained highwalls; Utah Admin. R.

654–301–553.600 and .620, AOC

variances for incomplete elimination of

highwalls in PMA’s or CMA’s; Utah

Admin. R. 654–301–553.631,

mountaintop removal operations; Utah

Admin. R. 654–301–553.650, required

showing by the operator and required

findings by the regulatory authority

necessary for approval of a retained

highwall; Utah Admin. R. 645–301–651,

height restrictions for retained

highwalls; Utah Admin. R. 645–301–

553.652, the applicability date of Utah’s

AOC standards at Utah Admin. R. 645–

301.553.651 through .655; Utah Admin.

R. 645–301–553.653, the restoration of

retained highwalls to cliff-type habitats

required by the flora and fauna existing

prior to mining; and Utah Admin. R.

645–301–553.654, compatibility of

retained highwalls with both the
Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations 28041

approved postmining land use and the

visual attributes of the area.

OSM announced receipt of the

proposed amendment in the December

8, 1993, Federal Register (58 FR 64529),

provided an opportunity for a public

hearing or meeting on its substantive

adequacy, and invited public comment

on its adequacy (administrative record

No. UT–879). Because no one requested

a public hearing or meeting, none was

held. The public comment period ended

on January 7, 1994.

During its review of the amendment,

OSM identified concerns relating to the

provisions of Utah Admin. R. 645.–301–

553.110, backfilling and grading of

disturbed areas; Utah Admin. R. 645–

301–553.500 and .600, the organization

of Utah’s rules pertaining to retained

highwalls; Utah Admin. R. 645–301–

553.510 and .522, general backfilling

and grading requirements; Utah Admin.

R. 645–301–553.522, slope stability and

drainage; Utah Admin. R. 645–301–

553.500 and .523, stability criteria for

retained highwalls; Utah Admin. R.

645–301–553.620, AOC variances; Utah

Admin. R. 645–301–553.650, AOC and

stability requirements for highwall

retention; Utah Admin. R. 645–301–

553.651, height and length of retained

highwalls; Utah Admin. R. 645–301–

553.652, the applicability date of Utah’s

AOC alternative; and various editorial

comments concerning Utah Admin. R.

645–301–553.120, .631, .650, and .655.

By letter dated March 31, 1994, OSM

notified Utah of the concerns

(administrative record No. UT–908).

By letter dated April 18, 1994, Utah

requested a meeting between the Utah

Division of Oil, Gas and Mining

(Division) and OSM for the purpose of

addressing the issues set forth by OSM

in the March 31, 1994, letter

(administrative record No. UT–918). On

May 12, 1994, the Division and OSM

held an executive session at the Western

Support Center in Denver, Colorado.

OSM posted a notice of the executive

session in the Western Support Center

(administrative record No. UT–925).

OSM summarized the session and

entered the summary into the

administrative record (administrative

record UT–942).

By letter dated June 29, 1994, Utah

submitted a revised amendment in

response to OSM’s March 31, 1994,

letter as clarified at the May 12, 1994,

session (administrative record No. UT–

941). In this submittal, Utah, at its own

initiative, also proposed to (1) create a

definition of the term ‘‘continuously

mined areas’’ and (2) not use the terms

‘‘highwall remnant’’ and ‘‘retained

highwall.’’

OSM announced receipt of the

proposed revised amendment in the July

14, 1994, Federal Register (59 FR

35871) and reopened and extended the

public comment period (administrative

record No. UT–951). The public

comment period ended on July 29, 1994.

During its review of the revised

amendment, OSM identified additional

concerns relating to the provisions of

Utah Admin. R. 645–100–200,

definition of the term ‘‘continuously

mined areas;’’ Utah Admin. R. 645–301–

553, general provisions on highwalls

and backfilling and grading; Utah

Admin. R. 645–301–553.110, backfilling

and grading of disturbed areas; Utah

Admin. R. 645–301–553.120, backfilling

and grading of spoil and waste; Utah

Admin. R. 645–301–553.130, slope

stability requirements; Utah Admin. R.

645–301–553.510, remining operations

on PMA’s, CMA’s, and areas with

remaining highwalls subject to AOC

provisions; Utah Admin. R. 645–301–

553.550, .551, and .552, AOC

exceptions; Utah Admin. R. 645–301–

553.650, highwall management under

the AOC provisions; Utah Admin. R.

645–301–553.651, nonmountaintop

removal mining on steep slopes; Utah

Admin. R. 645–301–553.652, remaining

highwalls under the AOC provisions;

and Utah Admin. R. 645–301–553.653,

applicability date. By letter dated

August 24, 1994, OSM notified Utah of

the concerns (administrative record No.

UT–967).

By telephone conversation on August

30, 1994, Utah requested a meeting

between the Division and OSM for the

purpose of addressing the date of

applicability of Utah’s rules that allow

the replacement of preexisting cliffs or

similar natural premining features with

retained highwalls (administrative

record No. UT–1010). On September 7,

1994, the Division and OSM held an

executive session at the Western

Support Center in Denver, Colorado.

OSM posted a notice of the executive

session in the Western Support Center

(administrative record No. UT–969).

OSM summarized the session and

entered the summary into the

administrative record (administrative

record UT–970).

By letter dated November 3, 1994,

Utah submitted a revised amendment in

response to OSM’s August 24, 1994,

letter, as clarified at the September 7,

1994, session (administrative record No.

UT–990).

OSM announced receipt of the

proposed revised amendment in the

December 2, 1994, Federal Register (59

FR 61855) and reopened and extended

the comment period (administrative

record No. UT–996). The public

comment period ended on December 19,

1994.

III. Director’s Findings

As discussed below, the Director, in

accordance with SMCRA and 30 CFR

732.15 and 732.17, finds, with an

exception and additional requirements,

that the proposed program amendment

submitted by Utah on November 12,

1993, and as revised by it on June 28

and November 3, 1994, is no less

stringent than SMCRA and no less

effective than the corresponding Federal

regulations. Accordingly, the Director

approves, with one exception, the

proposed amendment and requires Utah

to revise its program.

The Director notes that in a December

13, 1982, final rule Federal Register

notice (47 FR 55672, 55673), the

Secretary of the Interior approved as

part of the Utah program a provision

that the Director in a subsequent

September 17, 1993, final rule Federal

Register notice (58 FR 48600) referred to

as the Utah ‘‘AOC alternative.’’ OSM

created the term ‘‘AOC alternative’’ and

Utah does not define it in its program.

In this proposed amendment, Utah used

the terminology ‘‘areas with remaining

highwalls subject to the AOC

provisions,’’ which is the Utah

counterpart terminology to what OSM

referred to in the past as the ‘‘AOC

alternative.’’ Accordingly, and

throughout the remainder of this

Federal Register notice, the Director

refers to what was previously called the

‘‘AOC alternative’’ in the September 17,

1993, final rule Federal Register notice

as ‘‘areas with remaining highwalls

subject to the AOC provisions.’’

Also, in the September 17, 1993, final

rule Federal Register notice (58 FR

48600), the Director placed upon the

Utah program four required State

program amendments at 30 CFR 944.16

(a), (b), (c), and (d) (administrative

record No. UT–872). Specifically, the

Federal Register notice revised 30 CFR

944.16 to read as follows:

Section 944.16 Required Program

Amendments

* * * * *

(a) By November 16, 1993, Utah shall

submit a proposed amendment for highwall

retention and approximate original contour

(AOC) at Utah Admin. R. 645–301–553.650 to

require that, prior to obtaining Utah’s

approval for highwalls to be retained, the

operator must establish and Utah must find

in writing that any proposed highwall will

comply with the approximate original

contour criteria at Utah Admin. R. 645–301–

553.651 through 655 and the stability

requirement at Utah Admin. R. 645–301–

553.523.

(b) By November 16, 1993, Utah shall

submit a proposed amendment for highwall
28042 Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations

retention and approximate original contour at

Utah Admin. R. 645–301–553.651 restricting

the height of retained highwalls to the height

of cliffs or cliff-like escarpments that were

replaced or disturbed by the mining

operations.

(c) By November 16, 1993, Utah shall

submit a proposed amendment stating that its

requirement at Utah Admin. R. 645–301–

553.652 has an applicability date of

December 13, 1982, and applies to any

highwall retained pursuant to the

approximate original contour alternative.

(d) By November 16, 1993, Utah shall

submit a proposed amendment for Utah

Admin. R. 645–301–553.523 (1) eliminating

the inconsistency between the title

‘‘previously mined areas’’ at Utah Admin. R.

645–301–553.500 and the content of

subsection Utah Admin. R. 645–301–553.523,

and clarifying that the stability criteria of

proposed Utah Admin. R. 645–301–553.523

apply to the AOC alternative at Utah Admin.

R. 645–301–553.650, (2) specifying that a

highwall remnant or retained highwall must

not pose a hazard to the environment, and (3)

deleting the phrase ‘‘not to exceed either the

angle of repose or such lesser slope as is

necessary to.’’

However, in an April 7, 1994, final

rule Federal Register notice (59 FR

16538), OSM inadvertently removed the

above required State program

amendments from 30 CFR 944.16

(administrative record No. UT–913). In

addition, and subsequent to this

inadvertent removal of the required

State program amendments originally

codified at 30 CFR 944.16 (a), (b), (c),

(d), OSM published two final rule

Federal Register notices (July 11, 1994,

59 FR 35255; September 27, 1994, 59 FR

49185) and placed new required State

program amendments on the Utah

program at 30 CFR 944.15 (a) and (b)

respectively (administrative record Nos.

UT–947 and UT–977). Throughout this

notice, OSM refers to the required

amendments associated with this

proposed amendment and originally

codified as 30 CFR 944.16 (a), (b), (c),

and (d) as ‘‘the required amendments

previously codified at 30 CFR 944.16

(a), (b), (c), and (d) (September 17, 1993,

58 FR 48600).’’

1. Nonsubstantive Revisions to Utah’s

Rules

Utah proposed revisions to the

following previously-approved rules

that are nonsubstantive in nature and

consist of minor editorial, grammatical,

and recodification changes

(corresponding Federal provisions are

listed in parentheses):

Utah Admin. R. 645–301–553 (30 CFR

816.102 and 817.102),

contemporaneous reclamation for

backfilling and grading;

Utah Admin. R. 645–301–553.130 (30

CFR 816.102(a)(3)), 1.3 static safety

factor;

Utah Admin. R. 645–301–553.150 (30

CFR 816.102(a)(5) and

817.102(a)(5)), postmining land use;

Utah Admin. R. 645–301–553.200 (30

CFR 816.102(c) and 817.102(c))

backfilling and grading of spoil and

waste;

Utah Admin. R. 645–301–553.210 (30

CFR 816.71 and 817.71), general

requirements for disposal of excess

spoil;

Utah Admin. R. 645–301–553.220 (30

CFR 816.102(d) and 817.102(d)),

placement of spoil;

Utah Admin. R. 645–301–553.252 (30

CFR 816.83(c)(4) and 817.83(c)(4)),

final grading of refuse piles and

coal mine waste;

Utah Admin. R. 645–301–553.300 (30

CFR 816.102(f) and 817.102(f)),

covering of exposed coal seams;

Utah Admin. R. 645–301–553.510 (30

CFR 816.106(a) and 817.106(a)),

remining operations on PMA’s,

CMA’s, and areas with remaining

highwalls subject to AOC

provisions;

Utah Admin. R. 645–301–553.540,

previously codified as Utah Admin.

R. 645–301–553.524 (30 CFR

816.106(b)(4) and 817.106(b)(4)),

spoil placement;

Utah Admin. R. 645–301–553.300,

previously codified as Utah Admin.

R. 645–301–553.653 (30 CFR Parts

816 and 817 concerning backfilling

and grading requirements for both

surface and underground mining

operations and sections 515 (b)(2)

and (b)(3) of SMCRA),

modifications to retained highwalls

restoring cliff-type habitats required

by premining flora and fauna;

Utah Admin. R. 645–301–553.650.400,

previously codified as Utah Admin.

R. 645–301–553.654 (30 CFR 784.15

and sections 515 (b)(2) and (b)(3) of

SMCRA), compatibility of retained

highwalls with the approved

postmining land use and visual

attributes of the area; and

Utah Admin. R. 645–301–553.650.500,

previously codified as Utah Admin.

R. 645–301–553.655, exemption

from obtaining a variance from AOC

requirements.

Because the proposed revisions to

these previously-approved rules are

nonsubstantive in nature, the Director

finds that these proposed Utah rules are

no less effective than the Federal

regulations and no less stringent than

SMCRA. The Director approves these

proposed rules.

2. Substantive Revisions to Utah’s Rules

That Are Substantively Identical to the

Corresponding Provisions of the Federal

Regulations and SMCRA

Utah proposed revisions to the

following rules that are substantive in

nature and contain language that is

substantively identical to the

requirements of the corresponding

Federal regulations (listed in

parentheses):

Utah Admin. R. 645–301–553.100 (30

CFR 816.102(a) and 817.102(a)),

section entitled ‘‘disturbed areas;’’

and

Utah Admin. R. 645–301–553.230 (30

CFR 816.102(j) and 817.102(j)),

general requirements for backfilling

and grading.

Because these proposed Utah rules are

substantively identical to the

corresponding provisions of the Federal

regulations, the Director finds that they

are no less effective than the Federal

regulations. The Director approves these

proposed rule.

3. Utah Admin. R. 645–100–200,

Definition of ‘‘Continuously Mined

Areas’’

Utah proposed to define

‘‘continuously mined areas’’ (CMA’s) at

Utah Admin. R. 645–100–200 to mean

‘‘land which was mined for coal by

underground mining operations prior to

August 3, 1977, the effective date of the

Federal Act, and where mining

continued after that date.’’ The ‘‘Federal

Act’’ is SMCRA.

The Federal backfilling and grading

regulations at 30 CFR 817.106(a), (b),

and (b)(1) allow an exception from the

requirement for complete highwall

elimination for underground mining

operations that remine highwalls in

PMA’s, which means land affected by

surface coal mining operations prior to

August 3, 1977, the effective date of

SMCRA, that have not been reclaimed to

the standards of SMCRA (January 8,

1993, 58 FR 3466). These regulations

allow for the incomplete elimination of

such highwalls where the volume of all

reasonably available spoil is insufficient

to completely backfill the reaffected or

enlarged highwall.

As part of the Utah program, the

Director approved, in a September 17,

1993, final rule Federal Register notice

(58 FR 48600, 48603), a limited

exception to the requirement to

completely eliminate all highwalls for

CMA’s. Utah’s approved CMA rules

differ from the Federal PMA regulations

in that they extend the exception for

incomplete highwall elimination to

underground mining operations where

the highwall was created prior to
Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations 28043

August 3, 1977, but continued to be

used thereafter.

In approving Utah’s CMA provisions,

the Director reasoned, in part, that they

provide equitable treatment for preSMCRA mines that have operated

continuously since before the effective

date of SMCRA and afford the same

variance from AOC requirements as is

provided in the PMA regulations at 30

CFR 817.106 for remaining sites where

operation of a pre-SMCRA mine has

been interrupted and mining was begun

again at the sites after the effective date

of SMCRA.

Utah’s proposed definition of

‘‘continuously mined areas’’ is limited

in accordance with the Director’s

approval in the September 17, 1993,

final rule Federal Register notice. That

is, Utah’s newly-proposed definition at

Utah Admin. R. 645–100–200 limits the

term to underground mining operations.

In the aforementioned final rule Federal

Register notice, OSM approved Utah’s

CMA provisions at Utah Admin. R./

645–301–553.510, .520, and .521

‘‘[i]nsofar as they apply to underground

mining operations that operated prior to

August 3, 1977, and have continuously

operated since that time.’’ Therefore,

Utah’s proposed definition of the term

‘‘continuously mined areas’’ is not

inconsistent with the Federal

regulations at 30 CFR 817.106(a), (b),

and (b)(1) and is in accordance with

Utah’s previously approved CMA

provisions. On this basis, the Director

approves Utah’s proposed rule.

However, with respect to CMA’s, the

Director wishes to emphasize that the

exception to the requirement to

completely eliminate all highwalls

should, like the similar Utah exception

for PMA’s, be narrowly construed and

should ensure that the highwall is

removed to the maximum extent

technically practical (September 16,

1983, 48 FR 41720, 41729). Thus, for

example, where an underground mining

operation has been continuously mined

since before the effective date of

SMCRA (August 3, 1977) and contains

both pre- and post-SMCRA face-up or

portal areas, this exception must be

understood as applying only to the preSMCRA face-up areas. Any post-SMCRA

portal areas within the same mining

operation must comply with the

requirement to completely eliminate all

highwalls. The Director interprets

Utah’s proposed definition of the term

‘‘continuously mined areas’’ in this

limited fashion.

4. Utah Admin. R. 645–301–553.110,

Exceptions to the Requirement That

Disturbed Areas Achieve AOC

Utah proposed to revise existing Utah

Admin. R. 645–301–553.110 to require

that disturbed areas achieve AOC except

as provided for in the reorganized and

recodified provisions at Utah Admin. R.

645–301–500 through Utah Admin. R.

645–301–540 (PMA’s, CMA’s, and areas

subject to the AOC provisions), Utah

Admin. R. 645–301–553.600 through

Utah Admin. R. 645–301–553.612

(PMA’s and CMA’s), Utah Admin. R.

645–302–270 (nonmountaintop removal

on steep slopes), Utah Admin. R. 645–

302–220 (mountaintop removal mining),

Utah Admin. R. 645–301–553.700 (thin

overburden), and Utah Admin. R. 645–

301–553.800 (thick overburden). In

conjunction with consolidating these

exceptions into one provision, Utah also

proposed to delete provisions that

formerly existed at Utah Admin. R. 645–

301–553.600 (introductory language),

.610 (nonmountaintop removal on steep

slopes), .620 (PMA’s), .630

(mountaintop removal mining), .640

(introductory language), .641 (thin

overburden), and .642 (thick

overburden).

The Federal regulations at 30 CFR

816.102(k) provide variances from AOC

for (1) steep-slope mining operations, (2)

PMA’s, (3) mountaintop removal

operations, (4) thin overburden areas,

and (5) thick overburden areas. The

provisions at 30 CFR 817.102(k) provide

variances from AOC for (1) steep-slope

mining operations and (2) PMA’s.

Utah’s proposed revisions to Utah

Admin. R. 645–301–553.110, which

create a general AOC provision that

references all exceptions to the

requirement that disturbed areas must

be backfilled and graded to achieve

AOC, are consistent with the

corresponding Federal regulations at 30

CFR 816.102(k) and 817.103(k) and

clarify and improve the organizational

nature of Utah’s AOC rules. However,

the cross-referenced provisions contain

citation errors. Specifically, Utah’s

cross-referenced provisions in the

phrase ‘‘R645–301–500 through R645–

301–540,’’ regarding PMA’s, CMA’s, and

areas subject to the AOC provisions,

should read ‘‘R645–301–553.500

through R645–301–553.540.’’ Utah’s

incorrectly cross-referenced citations

create a regulatory inconsistency within

the Utah program.

For the reasons discussed above, the

Director approves Utah’s proposed

consolidation of all exceptions to the

requirement that disturbed areas must

be backfilled and graded to achieve

AOC into Utah Admin. R. 645–301–

553.110. In addition, the Director

approves Utah’s proposed deletion of

existing Utah Admin. R. 645–301–

553.600 and those provisions identified

above that formerly existed elsewhere in

Utah’s rules prior to the consolidation.

However, the Director further requires

Utah to revise the cross-referenced

provisions in the phrase ‘‘R645–301–

500 through R645–301–540,’’ regarding

PMA’s, CMA’s, and areas subject to the

AOC provisions, to read ‘‘R645–301–

553.500 through R645–301–553.540.’’

5. Utah Admin. R. 534–301–553.120,

Backfilling and Grading of Spoil and

Waste

Utah proposed to revise existing Utah

Admin. R. 645–301–553.120 to require

that disturbed areas be backfilled and

graded to ‘‘[e]liminate all highwalls,

spoil piles, and depressions, except as

provided in R645–301–552.100 (small

depressions); R645–301–553.500

through R645–301–540 (PMA’s, CMA’s,

and areas subject to approximate

original contour (AOC) provisions;

R645–301–553.600 through R645–301–

553.612 (PMA’s and CMA’s); and in

R645–301–553.650 through R645–301–

553.653 (highwall management under

the AOC provisions).’’

The Director notes that the exceptions

listed at proposed Utah Admin. R. 645–

301–553.120 for PMA’s, CMA’s, and

areas subject to AOC provisions are

exceptions only to the requirement to

completely eliminate all highwalls, and

are not exceptions to the separate

requirements to completely eliminate all

spoil piles and depressions.

The Federal regulations at 30 CFR

816.102(a)(2) and 817.102(a)(2) require

that disturbed areas be backfilled and

graded to eliminate all highwalls, spoil

piles, and depressions except as

provided in 30 CFR 816.102(h) (small

depressions) and (k)(3)(iii) (previously

mined highwalls).

Utah’s proposed revisions to Utah

Admin. R. 645–301–553.120, which

create a general provision that crossreferences all exceptions to the

requirement that disturbed areas must

be backfilled and graded to eliminate all

highwalls, spoil piles, and depressions,

are consistent with the corresponding

Federal regulations at 30 CFR

816.102(a)(2) and 817.102(a)(2) and

clarify and improve the organizational

nature of Utah’s rules. However, the

cross-referenced provisions contain

citation inconsistencies. Specifically,

Utah’s cross-referenced provisions in

the phrase ‘‘R645–301–553.500 through

R645–301–540,’’ regarding PMA’s,

CMA’s, and areas subject to the AOC

provisions, should read ‘‘R645–301–

553.500 through R645–301–533.540.’’ In
28044 Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations

addition Utah cross-references

provisions in the phrase ‘‘R645–301–

553.650 through R645–301–553.653.’’

However, Utah Admin. R. 645–301–

553.653 no longer exists in Utah’s

reorganized rules and has now been

recodified as Utah Admin. R. 645–301–

553.651. Utah’s incorrectly crossreferenced citations create a regulatory

inconsistency within the Utah program.

For the reasons discussed above, the

Director approves proposed Utah

Admin. R. 645–301–553.120 but further

requires Utah to (1) revise the crossreferenced provisions in the phrase

‘‘R645–301–553.500 through R645–301–

540,’’ regarding PMA’s, CMA’s, and

areas subject to the AOC provisions, to

read ‘‘R645–301–553.500 through R645–

301–553.540’’ and (2) revise the crossreferenced provisions in the phrase

‘‘R645–301–553.650 through R645–301–

553.653’’ to read ‘‘R645–301–553.650

through R645–301–553.651.’’

6. Utah Admin. R. 634–301–553.500,

PMA’s, CMA’s, and Areas With

Remaining Highwalls Subject to AOC

Provisions

In partial response to the required

amendment previously codified at 30

CFR 994.16(d)(1) (September 17, 1993,

58 FR 48600), Utah proposed to revise

the existing title of section Utah Admin.

R. 645–301–553.500 to make it

consistent with the content of

subsections Utah Admin. R. 645–301–

553.510 through .540. Specifically, Utah

proposed to revise the title of section

Utah Admin. R. 645–301–553.500 from

‘‘Previously Mined Areas’’ to

‘‘Previously mined areas (PMA’s),

Continuously Mined Areas (CMA’s),

and Areas with Remaining Highwalls

Subject to the AOC Provisions.’’

Utah proposed this change to

eliminate the inconsistency between the

title ‘‘Previously Mined Areas’’ at Utah

Admin. R. 645–301–553.500 and the

content of recodified subsection Utah

Admin. R. 645–301–553.530 (previously

codified as .523), which addresses

highwall stability criteria (see finding

No. 9). The proposed title ‘‘Previously

mined areas (PMA’s), Continuously

Mined Areas (CMA’s), and Areas with

Remaining Highwalls Subject to the

AOC Provisions’’ for Utah Admin. R.

645–301–553.500 is consistent with the

term ‘‘remaining highwalls,’’ which

Utah uses at Utah Admin. R. 645–301–

553.530 in place of the terms ‘‘retained

highwall’’ and ‘‘highwall remnant.’’

The Director finds that Utah’s

proposed revisions to the title of section

Utah Admin. R. 645–301–553.500 are

not inconsistent with the Federal AOC,

PMA, and CMA provisions at 30 CFR

816.102, 817.102, 816.106, and 817.106.

The Director also finds that the

proposed revisions satisfy the part of the

required amendment previously

codified at 30 CFR 944.16(d)(1) that

applied to Utah Admin. R. 645–301–

553.500. For these reasons, the Director

approves Utah’s proposed revisions to

the title of section Utah Admin. R. 645–

301–553.500.

7. Utah Admin. R. 634–301–553.520,

Backfilling and Grading of Remaining

Highwalls

Utah proposed to revise existing Utah

Admin. R. 645–301–553.520 to make it

consistent with the requirements for

remaining operations on PMA’s,

operations on CMA’s, and operations on

areas with remaining highwalls subject

to the AOC provisions. Specifically,

Utah proposed to consolidate a phrase

from original Utah Admin. R. 645–301–

553.520 with the text of Utah Admin. R.

645–301–553.522 to create new Utah

Admin. R. 645–301–553.520 which

states that ‘‘[t]he backfill of all

remaining highwalls will be graded to a

slope that is compatible with the

approved postmining land use and

which provides adequate drainage and

long-term stability.’’ In conjunction with

this consolidation, Utah deleted the

citation previously codified at Utah

Admin. R. 645–301–553.522.

The Federal regulations at 30 CFR

816.106(b)(2) and 817.106(b)(2) require

that ‘‘the backfill [from remaining

operations on PMA’s] shall be graded to

a slope which is compatible with the

approved postmining land use and

which provides adequate drainage and

long-term stability.’’ The Federal

regulations at 30 CFR 816.106(b)(2) and

817.106(b)(2) apply only to remaining

operations on PMA’s. Utah’s proposed

rule differs from the Federal regulations

in that Utah proposes to extend its rules

concerning the backfilling and grading

requirements for remaining highwalls to

operations on CMA’s and operations on

areas with remaining highwalls subject

to the AOC provisions. Although there

are no Federal regulations that directly

correspond to Utah’s application of its

rule to operations on CMA’s and

operations on areas with remaining

highwalls subject to the AOC

provisions, the Federal regulations at 30

CFR 816.106(b)(2) and 817.106(b)(2), as

discussed in the September 17, 1993,

final rule Federal Register notice, are

analogous to this Utah provision.

Utah’s proposed revisions to Utah

Admin. R. 645–301–553.520, regarding

the requirements for remaining

operations on PMA’s, CMA’s, and areas

with remaining highwalls subject to the

AOC provisions, are not inconsistent

with the corresponding Federal

regulations at 30 CFR 816.106(b)(2) and

817.106(b)(2). For this reason, the

Director approves Utah’s proposed

revision to Utah Admin. R. 645–301–

553.520.

8. Utah Admin. R. 645–301–553.530,

Stability Criteria for Backfilling and

Grading

In partial response to the required

amendment previously codified at 30

CFR 944.16(d) (September 17, 1993, 58

FR 48600), Utah proposed to revise

existing Utah Admin. R. 645–301–

553.523, regarding highwall retention

stability criteria. Utah proposed

recodifying the rule as Utah Admin. R.

645–301–553.530 and relocating it

under the reorganized section of its

rules at Utah Admin. R. 645–301–

553.500 entitled ‘‘PMA’s, CMA’s and

Areas with Remaining Highwalls

Subject to the AOC Provisions,’’ which

was previously entitled ‘‘previously

mined areas’’ (see finding No. 6). Utah

also proposed to delete the phrase ‘‘not

to exceed either the angle of repose or

such lessor slope as is necessary to’’

from recodified Utah Admin. R. 645–

301–553.530. Lastly, Utah proposed to

revise the rule to require that (1) any

remaining highwall will be stable and

not pose a hazard to the public health

or safety or to the environment, and (2)

remaining highwalls must achieve a

minimum long-term static safety factor

of 1.3 and prevent slides, or meet an

alternative criterion that the operator

proposes and demonstrates to the

satisfaction of the Division that the

remaining highwall is stable does not

pose a hazard to the public health and

safety or to the environment.

By changing the PMA title of Utah

Admin. R. 645–301–553.530 to include

CMA’s and areas with remaining

highwalls subject to the AOC

provisions, Utah in effect proposed that

remaining highwalls on PMA’s and

CMA’s and areas with remaining

highwalls subject of the AOC provisions

comply with the proposed stability

criteria of Utah Admin. R. 645–301–

553.530.

The Federal general backfilling and

grading regulations at 30 CFR

816.102(a)(3) and 817.102(a)(3) require

that disturbed areas be backfilled and

graded to achieve a postmining slope

that does not exceed either the angle of

repose or such lesser slope as is

necessary to achieve a minimum longterm static safety factor of 1.3 and to

prevent slides. The Federal regulations

at 30 CFR 816.106(b)(3) and

817.106(b)(3) concerning backfilling and

grading of PMA’s require that any

highwall remnant be stable and not pose

a hazard to the public health and safety
Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations 28045

or to the environment and that the

operator shall demonstrate, to the

satisfaction of the regulatory authority,

that the highwall remnant is stable. The

Federal regulations at 30 CFR

816.106(b)(3) and 817.106(b)(3) apply

only to remaining operations on PMA’s.

Utah’s proposed rule differs from the

Federal regulations in that Utah

proposes to extend its rules concerning

the stability criteria for backfilling and

grading of remaining highwalls to

operations on CMA’s and operations on

areas with remaining highwalls subject

to the AOC provisions. Although there

are no Federal regulations that directly

correspond to Utah’s application of its

rule to operations on CMA’s and

operations on areas with remaining

highwalls subject to the AOC

provisions, the Federal regulations at 30

CFR 816.106(b)(3) and 817.106(b)(3), as

discussed in the September 17, 1993,

final rule Federal Register notice, are

analogous to this Utah provision.

The Director emphasizes that, in all

cases, the Federal regulations at 30 CFR

816.102(a)(3) and 817.102(a)(3) require

the backfill material at the base or

against a highwall to have a minimum

long-term static safety factor of 1.3 and

prevent slides. The Director recognizes

that a highwall remnant extending

above the backfill material does not

have to achieve the 1.3 minimum longterm static safety factor. However, the

Federal regulations at 30 CFR

816.106(b)(3) and 817.106(b)(3) and

require (1) that any highwall remnant be

stable and not pose a hazard to the

public health and safety or to the

environment and (2) that an operator

demonstrate to the satisfaction of the

regulatory authority that the highwall

remnant is stable.

Utah’s proposed revisions to

recodified Utah Admin. R. 645–301–

553.530 to require that its stability

criteria apply to any remaining highwall

left in accordance with the approved

State program, whether in connection

with a PMA, a CMA or an area with

remaining highwalls subject to Utah’s

AOC provisions is not inconsistent with

the Federal regulations at 30 CFR

816.102(a)(3), 817.102(a)(3),

816.106(b)(3) and 817.106(b)(3).

The portion of Utah’s proposed

revisions to recodified Utah Admin. R.

645–301–553.530 deleting the phrase

‘‘not to exceed either the angle of repose

or such lesser slope as is necessary to,’’

as previously required by 30 CFR

944.16(d), is not inconsistent with the

Federal regulations at 30 CFR

816.102(a)(3) and 817.102(a)(3).

The portion of Utah’s proposed

revisions at Utah Admin. R. 645–301–

553. 530 that allows an operator to

provide alternative stability criterion to

establish that a highwall remnant or

retained highwall is stable and does not

pose a hazard to the public health and

safety or to the environment is not

inconsistent with the Federal

regulations at 30 CFR 816.106(b)(3) and

817.106(b)(3).

For the reasons discussed above, the

Director approves Utah’s proposed rule

revisions to recodified Utah Admin. R.

645–301–553.530. The Director also

finds that the proposed revisions satisfy

the part of the required amendment

previously codified at 30 CFR

944.16(d)(1) that applied to recodified

Utah Admin. R. 645–301–553.530 and

satisfy in total the required amendments

previously codified at 30 CFR

944.16(d)(2) and (3).

9. Utah Admin. R. 634–301–553.600,

PMA’s and CMA’s

Utah proposed to delete existing Utah

Admin. R. 645–301–553.650 and create

new Utah Admin. R. 645–301–553.600,

which serves as the section title and

introduction to Utah’s reorganized rule

requirements at Utah Admin. R. 645–

301–553.610 through .612 for PMA’s

and CMA’s (see finding Nos. 11 and 12).

The counterpart Federal regulations at

30 CFR 816.106 and 817.106 pertain to

backfilling and grading requirements for

PMA’s. The Federal regulations at 30

CFR 816.106 and 817.106 apply only to

backfilling and grading requirements for

remaining operations PMA’s. Utah’s

proposed rule differs from the Federal

regulations in that Utah proposes to

extend its rules concerning the

backfilling and grading requirements for

remaining highwalls to operations on

CMA’s. Although there are no Federal

regulations that directly correspond to

Utah’s application of its rule to CMA’s,

the Federal regulations at 30 CFR

816.106 and 817.106, as discussed in

the September 17, 1993, final rule

Federal Register notice, are analogous

to this Utah provision.

Newly-created Utah Admin. R. 645–

301–553.600 is consistent with Utah’s

proposed rule reorganization and is not

inconsistent with the corresponding

Federal regulations at 30 CFR 816.106

and 817.106. Accordingly, the Director

approves Utah’s proposed rule revision.

10. Utah Admin. R. 634–301–553.610,

Exceptions for PMA’s and CMA’s From

the Requirement for Complete Highwall

Elimination

Utah proposed to revise the text of the

existing provision at Utah Admin. R.

645–301–553.520 and relocate it at new

Utah Admin. R. 645–301–553.610 under

the newly-created section of Utah’s

rules at Utah Admin. R. 645–301–

553.600 addressing PMA’s and CMA’s

(see finding No. 10). Specifically,

proposed Utah Admin. R. 645–301–

553.610 states that highwalls on PMA’s

or CMA’s must be eliminated to the

maximum extent technically practical,

but are not required to be completely

eliminated where the volume of all

reasonably available spoil is

demonstrated in writing to the Division

to be insufficient to completely backfill

the reaffected or enlarged highwall.

Newly-created Utah Admin. R. 645–

301–553.610, which allows an

exception for PMA’s and CMA’s to the

requirement that highwalls be

completely eliminated, is consistent

with the proposed reorganization of

Utah’s rules. In addition, because

operations on both PMA’s and CMA’s

must eliminate the highway to the

maximum extent technically practical

and make a written demonstration that

all reasonably available spoil was used,

proposed Utah Admin. R. 645–301–

553.610 is not inconsistent with the

Federal regulations at 30 CFR

816.106(b)(2) and 817.106(b)(2). For this

reason, the Director approves newlycreated Utah Admin. R. 645–301–

553.610.

11. Utah Admin. R. 634–301–553.611

and .612, Backfilling and Grading of

Reasonably Available Spoil

Utah proposed to delete existing Utah

Admin. R. 645–301–553.521 and create

new provisions at Utah Admin. R. 645–

301–553.611 and .612 respectively,

which consist of the revised text of

former Utah Admin. R. 645–301–

553.521. Newly-created Utah Admin. R.

645–301–553.611 requires that all spoils

generated by the remining operation or

CMA and any other reasonably available

spoil will be used to backfill the area.

Newly-created Utah Admin. R. 645–

301–553.612 requires that reasonably

available spoil in the immediate vicinity

of the remining operation or CMA will

be included within the permit area.

The Federal regulations at 30 CFR

816.106(b)(1) and 817.106(b)(1) require

that all spoil generated by the remining

operation on PMA’s and any other

reasonably available spoil will be used

to backfill the area, and reasonably

available spoil in the immediate vicinity

of the remining operation shall be

included within the permit area. The

Federal regulations at 30 CFR

816.106(b)(1) and 817.106(b)(1) apply

only to backfilling and grading

requirements for remining operations on

PMA’s. Utah’s proposed rules differ

from the Federal regulations in that

Utah proposes to extend its rules

concerning the requirements for

backfilling and grading of reasonably
28046 Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations

available spoil to operations with

remaining highwalls on CMA’s.

Although there are no Federal

regulations that directly correspond to

Utah’s application of its rules to CMA’s,

the Federal regulations at 30 CFR

816.106(b)(1) and 817.106(b)(1), as

discussed in the September 17, 1993,

final rule Federal Register notice, are

analogous to these Utah provisions.

Utah’s newly-created provisions at

proposed Utah Admin. R. 645–301–

553.611 and .612 are in accordance with

Utah’s proposed rule reorganization and

are not inconsistent with the Federal

requirements. Accordingly, the Director

approves Utah’s newly-created

provisions at Utah Admin. R. 645–301–

553.611 and .612.

12. Utah Admin. R. 645–301–553.650,

Highwall Management Under the AOC

Provisions

In response to the required

amendment previously codified at 30

CFR 944.16(a) (September 17, 1993, 58

FR 48600), Utah proposed to create new

Utah Admin. R. 645–301–553.650 by

proposing a section entitled ‘‘Highwall

Management Under the Approximate

Original Contour Provisions.’’ Newlycreated Utah Admin. R. 645–301–

553.650 requires that for situations

where a permittee seeks approval for a

remaining highwall under the AOC

provisions, the permittee will establish

and the Division will find in writing

that the remaining highwall will achieve

the stability and AOC requirements of

certain cited applicable rules.

While there are no Federal regulations

that directly correspond to newlycreated Utah Admin. R. 645–301–

553.650, the Federal regulations at 30

CFR 816.102(k)(3)(ii) and 817.102(k)(1)

explicitly require operators to obtain the

regulatory authority’s approval for

determinations relating to AOC. Because

Utah’s proposed rule at Utah Admin. R.

645–301–553.650 does explicitly require

that, prior to the Division approving the

retention of a highwall, the permittee

will establish and the Division will find

in writing that the remaining highwall

will achieve the applicable stability

requirements and will meet the

applicable AOC criteria, it is not

inconsistent with the Federal

regulations at 30 CFR 816.102(k)(3)(ii)

and 817.102(k)(1).

Accordingly, the Director approves

newly-created Utah Admin. R. 645–

301–553.650. The Director also finds

that the proposed rule satisfies the

required amendment previously

codified at 30 CFR 944.16(a).

13. Utah Admin. R. 645–301–

553.650.100, Height and Length of

Remaining Highwalls

In response to the required

amendment previously codified at 30

CFR 944.16(b) (September 17, 1993, 58

FR 48600), Utah proposed to revise

existing Utah Admin. R. 645–301–

553.651 by recodifying it as Utah

Admin. R. 645–301–553.650.100 and

revising it to require that a remaining

highwall will not be greater in height or

length than the cliffs and cliff-like

escarpments that were replaced or

disturbed by the mining operations.

Beacuse proposed Utah Admin. R.

645–301–553.650.100 restricts the

height and length of remaining

highwalls to those cliffs and cliff-like

escarpments that were replaced or

disturbed by the mining operations, it is

consistent with the replacement

criterion for areas with remaining

highwalls subject to the AOC provisions

at Utah Admin. R. 645–301–

553.650.200, and is no less stringent

than section 515(b)(3) of SMCRA, which

requires mining operations to restore the

land to AOC. In addition, Utah Admin.

R. 645–301–553.650.100 is in

accordance with Utah’s proposed rule

reorganization.

For these reasons, the Director

approves proposed Utah Admin. R.

645–301–553.650.100. The Director also

finds that the proposed rule satisfies the

required amendment previously

codified at 30 CFR 944.16(b).

14. Utah Admin. R. 645–301–

553.650.200, Replacement of Preexisting

Cliffs or Similar Natural Premining

Features With a Remaining Highwall

Utah proposed to recodify existing

Utah Admin. R. 645–301–553.652 as

Utah Admin. R. 645–301–553.650.200

and revise it to require that a highwall

may remain only when it replaces a

preexisting cliff or similar natural

premining feature and resembles the

structure, composition, and function of

the natural cliff it replaces.

As discussed in the September 17,

1993, final rule Federal Register notice

(58 FR 48600, 48604–5), the Secretary of

the Interior harmonized the inherent

contradiction that exists when applying

section 515(b)(3) of SMCRA, which

requires operators to restore land to

AOC with all highwalls eliminated, to

specific areas of Utah involving natural

benches and steep topography by

approving a carefully limited exception

in the Utah program to SMCRA’s

requirement for the complete

elimination of all highwalls. Because

proposed Utah Admin. R. 645–301–

553.650.200 allows highwalls to remain

only when they replace preexisting

cliffs or similar natural premining

features and resemble the structure,

composition, and function of the natural

cliffs they replace, it is in accordance

with the Secretary’s approval of Utah’s

provisions for areas with remaining

highwalls subject to the AOC provisions

and is no less stringent than section

515(b)(3) of SMCRA, which requires

mining operations to restore the land to

AOC. In addition, Utah Admin. R. 645–

301–553.600.200 is consistent with

Utah’s proposed rule reorganization.

Accordingly, the Director approves

Utah’s proposed rule.

15. Utah Admin. R. 645–301–553.651,

Applicability Date

In response to the required

amendment previously codified at 30

CFR 944.16(c) (September 17, 1993, 58

FR 48600), Utah proposed to create new

Utah Admin. R. 645–301–553.651,

which states the following.

Applicability. Where final backfilling and

grading was completed and the phase one

bond was released prior to June 2, 1992, no

redisturbance of a reclaimed highwall will be

required. Highwalls which were approved

under R645–301–553.652, the rule commonly

referred to as the ‘‘AOC alternative,’’ after

December 13, 1982 are subject to the

retroactive application of current rule R645–

301–552.650, providing the subject highwall

has not been reclaimed and phase one bond

was not released prior to June 2, 1992.

Utah incorporates by reference the

provisions of Utah Admin. R. 645–301–

552.650. No such citation exists in

Utah’s rules. For the purposes of the

following finding, OSM assumes that

the proposed reference is a

typographical error and that Utah

intended to cite Utah Admin. R. 645–

301–553.650.200, which is pertinent to

the proposed applicability section at

Utah Admin. R. 645–301–553.651 and

the required amendment previously

codified at 30 CFR 944.16(c).

At Utah Admin. R. 645–301–553.651,

Utah proposes that the requirements of

Utah Admin. R. 645–301–553.650.200

(incorrectly cited by Utah as Utah

Admin. R. 645–301–552.650) do not

retroactively apply to highwalls which

were retained under existing Utah

Admin. R. 645–301–553.652 and for

which final backfilling and grading was

completed and the phase one bond was

released prior to June 2, 1992.

Existing Utah Admin. R. 645–301–

553.652 provides in part that a highwall

may be retained if it is similar in

structural composition to the

preexisting cliffs ‘‘in the surrounding

area.’’ As discussed in the September

17, 1993, final rule Federal Register

notice (58 FR 48600, 48605; finding No.
Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations 28047

3), Utah interpreted the quoted phrase

to allow the retention of highwalls when

no similar natural features existed in the

disturbed area prior to mining. By letter

dated January 9, 1991, and sent to Utah

in accordance with 30 CFR 732.17, OSM

notified Utah that this interpretation

was not consistent with SMCRA and 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 AOC

provisions.

With respect to the June 2, 1992, date

that Utah uses in proposed Utah Admin.

R. 645–301–553.651, the Director, as

also discussed in the September 17,

1993, final rule Federal Register notice

(58 FR 48600, 48605–6; finding No.

3(C)(3)(b)), found that an applicability

date of December 13, 1982, rather than

June 2, 1992, is mandated by SMCRA.

In that discussion, the Director made

clear that the replacement criterion,

now codified at Utah Admin. R. 645–

301–553.650.200, has an applicability

date of December 13, 1982, and must

apply to any highwall retained pursuant

to the AOC provisions of the Utah

program at Utah Admin. R. 645–301–

553.650 regardless of the date that the

highwall was created.

For these reasons, the Director finds

that proposed Utah Admin. R. 645–301–

553.651 is 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 AOC

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)). Therefore, the

Director does not approve Utah’s

proposed rule at Utah Admin. R. 645–

301–553.651. In addition, the Director

will continue to interpret the

replacement criterion at Utah Admin. R.

645–301–553.650.200 as having an

applicability date of December 13, 1982,

and as applying to any highwall

retained pursuant to the AOC provisions

of the Utah program at Utah Admin. R.

645–301–553.650. The Director is not

requiring Utah, as was done previously

at 30 CFR 944.16(c), to revise its rules

to require that the replacement criterion

provision at Utah Admin. R. 645–301–

553.650.200 has an applicability date of

December 13, 1982, and applies to any

highwall retained pursuant to the AOC

provisions of the Utah program. OSM

has decided that it is not necessary to

require Utah to so revise its rules

because OSM has already made clear, in

the September 17, 1993, final rule

Federal Register notice (58 FR 48600,

48605–6; finding No. 3(C)(3)(b)), and

again in this finding, that the Director

will interpret the Utah replacement

criterion at Utah Admin. R. 645–301–

553.650.200 as having an applicability

date of December 13, 1982, and as

applying to any highwall retained

pursuant to the AOC provisions of the

Utah program at Utah Admin. R. 645–

301–553.650. OSM will utilize this

interpretation of the replacement

criterion at Utah Admin. R. 645–301–

553.650.200 in its oversight of the Utah

program, regardless of whether or not

Utah’s program explicitly addresses the

applicability of the replacement

criterion.

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.

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. Army Corps of Engineers

responded on December 15, 1993, and

August 1 and December 9, 1994, that the

changes to the Utah program were

satisfactory (administrative record Nos.

UT–884, UT–958, and UT–998).

The U.S. Fish and Wildlife Service

responded on December 16, 1993, that

it found nothing of significant concern

and on August 9, 1994, that it had no

further comments (administrative record

Nos. UT–885 and UT–961).

The U.S. Forest Service (USFS)

responded on December 27, 1993, that

‘‘the State of Utah uses a safety factor of

1.3 for long-term stability of highwalls

whereas the Forest Service requires a

safety factor of 1.5’’ (administrative

record No. UT–886).

Utah Admin. R. 645–301–553.130, in

pertinent part, requires that disturbed

areas will be backfilled and graded to

achieve a postmining slope that does

not exceed either the angle of repose or

such lesser slope as is necessary to

achieve a long-term static safety factor

of 1.3 and prevent slides. In addition,

Utah Admin. R. 645–301–553.530

requires, in pertinent part, that a Utah

operator will demonstrate, to the

satisfaction of the Division, that a

remaining highwall must achieve a

minimum long-term static safety factor

of 1.3 and prevent slides.

As discussed in finding No. 8, the

Federal regulations at 30 CFR

816.102(a)(3) and 817.102(a)(3) require

that disturbed areas shall be backfilled

and graded to achieve a postmining

slope that does not exceed either the

angle of repose or such lesser slope as

is necessary to achieve a long-term static

safety factor of 1.3 and prevent slides.

Therefore, Utah’s use of a 1.3 static

safety factor for long-term stability of

highwalls is ‘‘in accordance with and no

less effective than’’ the Federal

backfilling and grading standards set

forth in title 30 of the Code of Federal

Regulations. Because the Federal

regulations at 30 CFR 730.5(b) only

require that a State’s laws be ‘‘in

accordance with’’ and ‘‘no less effective

than’’ the Federal regulations in meeting

the requirements of SMCRA, the

Director does not have the authority to

require standards in excess of the

Federal regulations that implement

SMCRA. One this basis, the Director

does not require Utah to revise its

program in response to USFS’s

comment. However, if USFS has a 1.5

static safety factor that applies to

highwalls on land under USFS’s

jurisdiction, this does not preclude

USFS from enforcing this standard on

such highwalls.

The Mine Safety and Health

Administration responded on June 20,

1994, and January 12, 1995, that the

proposed amendment did not appear to

conflict with the requirements of 30

CFR, which includes its safety

regulations (administrative record Nos.

UT–940 and UT–1006).

The U.S. Bureau of Mines responded

on July 18 and December 6, 1994, by

telephone conversation, that it had no

comments on the proposed amendment

(administrative record Nos. UT–948 and

UT–995).

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.
28048 Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations

Pursuant to 732.17(h)(11)(i), OSM

solicited comments on the proposed

amendment from EPA (administrative

record Nos. UT–876, UT–946, and UT–

993). It responded on December 9, 1993,

July 19, 1994, and December 22, 1994,

that it had no comments on the

proposed amendment and did not

believe that there would be any impacts

to water quality standards promulgated

under the Clean Water Act

(administrative record Nos. UT–880,

UT–954, and UT–1000).

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–876,

UT–946, and UT–993). the SHPO did

not respond to OSM’s request.

V. Director’s Decision

Based on the above findings, the

Director approves, with an exception

and additional requirements, Utah’s

proposed amendment as submitted on

November 12, 1993, and as revised on

June 28 and November 3, 1994.

The Director does not approve, as

discussed in: finding No. 15, Utah

Admin. R. 645–301–553.651,

concerning the applicability date of

Utah’s replacement criterion for areas

with remaining highwalls subject to the

AOC provisions at Utah Admin. R. 645–

301–553.650.200.

The Director approves, as discussed

in: finding No. 1, Utah Admin. R. 645–

301–553, concerning contemporaneous

reclamation requirements for backfilling

and grading; Utah Admin. R. 645–301–

553.130, concerning the requirements

for a 1.3 static safety factor; Utah

Admin. R. 645–301–553.150,

concerning the requirements for post

mining land use; Utah Admin. R. 645–

301–553.200, concerning the backfilling

and grading requirements for spoil and

waste; Utah Admin. R. 645–301–

553.210, concerning the general

requirements for disposal of excess

spoil; Utah Admin. R. 645–301–553.220,

concerning the requirements for

placement of spoil; Utah Admin. R.

645–301–553.252, concerning the

requirements for final grading of refuse

piles and coal mine waste; Utah Admin.

R. 645–301–553.300, concerning the

requirements for covering of exposed

coal seams; Utah Admin. R. 645–301–

553.510, concerning remaining

operations on PMA’s, operations on

CMA’s, and operations on areas with

remaining highwalls subject to AOC

provisions; Utah Admin. R. 645–301–

553.540, concerning the requirements

for spoil placement; Utah Admin. R.

645–301–553.650.300, concerning the

requirement for modifications to

retained highwalls restoring cliff-type

habitats required by premining flora and

fauna; Utah Admin. R. 645–301–

553.650.400, concerning the

requirement for compatibility of

retained highwalls with the approved

postmining land use and visual

attributes of the area; and Utah Admin.

R. 645–301–553.650.500, concerning the

exemption from obtaining a variance

from AOC requirements; finding No. 2,

Utah Admin. R. 645–301–553.100,

concerning the section entitled

‘‘disturbed areas,’’ and Utah Admin. R.

645–301–553.230, concerning the

general requirements for backfilling and

grading; finding No. 3, Utah Admin. R.

645–100–200, concerning the definition

of ‘‘Continuously Mined Areas;’’ finding

No. 6, Utah Admin. R. 645–301–

553.500, concerning PMA’s, CMA’s, and

areas with remaining highwalls subject

to AOC provisions; finding No. 7, Utah

Admin. R. 634–301–553.520,

concerning backfilling and grading of

remaining highwalls; finding No. 8,

Utah Admin. R. 645–301–553.530,

concerning stability criteria for

backfilling and grading and resulting in

partial removal of the required

amendment previously codified at 30

CFR 944.16(d)(1) and total removal of

the required amendments previously

codified at 30 CFR 944.16(d) (2) and (3);

finding No. 9, Utah Admin. R. 634–301–

553.600, concerning Utah’s newlycreated section title for its reorganized

rule requirements for PMA’s and

CMA’s; finding No. 10, Utah Admin. R.

634–301–553.610, concerning

exceptions for PMA’s and CMA’s from

the requirement for complete highwall

elimination; finding No. 11, Utah

Admin. R. 634–301–553.611 and .612,

concerning backfilling and grading of

reasonably available spoil; finding No.

12, Utah Admin. R. 645–301–553.650,

concerning highwall management under

the AOC provisions and removal of the

required amendment previously

codified at 30 CFR 944.16(a); finding

No. 13, Utah Admin. R. 645–301–

553.650.100, concerning the height and

length of remaining highwalls and

removal of the required amendment

previously codified at 30 CFR 944.16(b);

and finding No. 14, Utah Admin. R.

645–301–553.650.200, concerning the

replacement of preexisting cliffs or

similar natural premining features with

a remaining highwall.

With the requirement that Utah

further revise its rules, the Director

approves, as discussed in: finding No. 4,

Utah Admin. R. 645–301–553.110,

concerning exceptions to the

requirement that disturbed areas

achieve AOC; and finding No. 5, Utah

Admin. R. 534–301–553.120,

concerning backfilling and grading of

spoil and waste.

The Director approves, with one

exception, the rules as proposed by

Utah with the provision that they be

fully promulgated in identical form to

the rules 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.

Effect of Director’s Decision

Section 503 of SMCRA provides that

a State may not exercise jurisdiction

under SMCRA unless the State program

is approved by the Secretary. Similarly,

30 CFR 732.17(a) requires that any

alteration of an approved State program

be submitted to OSM for review as a

program amendment. Thus, any changes

to the State program are not enforceable

until approved by OSM. The Federal

regulations at 30 CFR 732.17(g) prohibit

any unilateral changes to approved State

programs. In the oversight of the Utah

program, the Director will recognize

only the statutes, regulations and other

materials approved by OSM, together

with any consistent implementing

policies, directives and other materials,

and will require the enforcement by

Utah of only such provisions.

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 had

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
Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations 28049

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

The 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 with 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.

VII. List of Subjects in 30 CFR 944

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 23, 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 (ee) to read as follows:

§ 944.15 Approval of amendments to the

Utah regulatory program.

* * * * *

(ee) With the exception of Utah

Admin. R. 645–301–553.651,

concerning the applicability date of

Utah’s replacement criterion for areas

with remaining highwalls subject to the

AOC provisions at Utah Admin. R. 645–

301–553.650.200 (formerly the ‘‘AOC

alternative’’), the following rules, as

submitted to OSM on November 12,

1993, and as revised on June 28 and

November 3, 1994, are approved

effective May 30, 1995.

645–100–200 ..................... Definition of ‘‘Continuously Mined Areas’’ (CMA’s).

645–301–553 ..................... Contemporaneous Reclamation Requirements for Backfilling and Grading.

645–301–553.100 .............. Section Entitled ‘‘Disturbed Areas.’’

645–301–553.110 .............. Exceptions to the Requirement That Disturbed Areas Achieve Approximate Original Contour (AOC).

645–301–553.120 .............. Backfilling and Grading of Spoil and Waste.

645–301–553.130 .............. Requirements for a 1.3 Static Safety Factor.

645–301–553.150 .............. Requirements for Postmining Land Use.

645–301–553.200 .............. Backfilling and Grading Requirements for Spoil and Waste.

645–301–553.210 .............. General Requirements for Disposal of Excess Spoil.

645–301–553.220 .............. Requirements for Placement of Spoil.

645–301–553.230 .............. General Requirements for Backfilling and Grading.

645–301–553.252 .............. Final Grading of Refuse Piles and Coal Mine Waste.

645–301–553.300 .............. Covering of Exposed Coal Seams.

645–301–553.500 .............. Previously Mined Area’s (PMA’s), CMA’s, and Areas With Remaining Highwalls Subject to AOC Provisions.

645–301–553.510 .............. Remining Operations on PMA’s, Operations on CMA’s, and Operations on Areas With Remaining Highwalls

Subject to AOC Provisions.

645–301–553.520 .............. Backfilling and Grading of Remaining Highwalls.

645–301–553.530 .............. Stability Criteria for Backfilling and Grading.

645–301–553.540 .............. Spoil Placement.

645–301–553.600 .............. Newly-Created Section Title for Utah’s Reorganized Rule Requirements for PMA’s and CMA’s.

645–301–553.610 .............. Exceptions for PMA’s and CMA’s From the Requirement for Complete Highwall Elimination.

645–301–553.611 and .612 Backfilling and Grading of Reasonably Available Spoil.

645–301–553.650 .............. Highwall Management Under the AOC Provisions.

645–301–553.650.100 ....... Height and Length Requirements of Remaining Highwalls.

645–301–553.650.200 ....... Replacement of Preexisting Cliffs or Similar Natural Premining Features With a Remaining Highwall.

645–301–553.650.300 ....... Modifications to Retained Highwalls Restoring Cliff-Type Habitats Required by Premining Flora and Fauna.

645–301–553.650.400 ....... Compatibility of Retained Highwalls With the Approved Postmining Land Use and Visual Attributes of the

Area.

645–301–553.650.500 ....... Exemption from Obtaining a Variance From AOC Requirements.

3. Section 944.16 is amended by

adding paragraphs (c) and (d) to read as

follows:

§ 944.16 Required program amendments.

* * * * *

(c) By July 31, 1995, Utah shall revise

Utah Admin. R. 645–301–553.110, or

otherwise modify its program, by

correcting the cross-referenced

provisions in the phrase ‘‘R645–301–

500 through R645–301–540,’’ regarding

previously mined area’s continuously

mined area’s, and areas subject to the

AOC provisions, to read ‘‘R645–301–

553.500 through R645–301–553.540.’’

(d) By July 31, 1995, Utah shall revise

Utah Admin. R. 645–301–553–120, or

otherwise modify its program, by

correcting the cross-referenced

provisions in the phrase ‘‘R645–301–

553.500 through R645–301–540,’’

regarding previously mined area’s,

continuously mined area’s, and areas
28050 Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations

subject to the AOC provisions, to read

‘‘R645–301–553.500 through R645–301–

553.540’’ and correcting the crossreferenced provisions in the phrase

‘‘R645–301–553.650 through R645–301–

553.653’’ to read ‘‘R645–301–553.650

through R645–301–553.651.’’

[FR Doc. 95–13156 Filed 5–26–95; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 216

Military Recruiting at Institutions of

Higher Education

AGENCY: Office of the Secretary, DoD.

ACTION: Interim rule.

SUMMARY: The Department of Defense

adopts this interim rule to implement

the ‘‘National Defense Authorization

Act for Fiscal Year 1995. It updates

policy, procedures, and responsibilities

for identifying and taking action against

any institution of higher education that

has a policy of denying, or, that

effectively prevents, the Secretary of

Defense from obtaining for military

recruiting purposes: Entry to campuses,

access to students on campuses, or

access to student directory information.

No funds available to the Department of

Defense (DoD) may be provided by grant

or contract to any such institution. The

new law allows no basis for waivers.

DATES: This interim rule is effective on

May 30, 1995. Written comments on this

rule must be received by July 31, 1995.

ADDRESSES: Forward comments to the

Director for Accession Policy, Office of

the Assistant Secretary of Defense for

Force Management Policy, 4000 Defense

Pentagon, Washington, DC 20301–4000.

FOR FURTHER INFORMATION CONTACT:

Ronald G. Liveris, (703) 697–9268.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This interim rule is not a ‘‘significant

regulatory action,’’ as defined by

Executive Order 12866. The Department

of Defense believes that it will not: (1)

Have an annual effect on the economy

of $100 million or more or adversely

affect in a material way the economy, a

sector of the economy, productivity,

competition, jobs, the environment,

public health or safety, or State, local,

or tribal governments or communities;

(2) create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency; (3)

materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof; or (4) raise novel

legal or policy issues arising our of legal

mandates, the President’s priorities, or

the principles set forth in Executive

Order 12866.

Regulatory Flexibility Act of 1980 (5

U.S.C. 605(b))

This interim rule will not have a

significant adverse impact on a

substantial number of small entities.

Paperwork Reduction Act of 1980 (44

U.S.C., Chapter 35)

This interim rule will not impose any

additional reporting or record keeping

requirements under the Paperwork

Reduction Act.

List of Subjects in 32 CFR Part 216

Armed Forces, Colleges and

universities, Recruiting personnel.

Accordingly, 32 CFR part 216 is

revised to read as follows:

PART 216—MILITARY RECRUITING AT

INSTITUTIONS OF HIGHER

EDUCATION

Sec.

216.1 Purpose.

216.2 Applicability.

216.3 Definitions.

216.4 Responsibility.

Appendix A to part 216—Sample Letter of

Inquiry

Authority: 10 U.S.C. 503 note.

§ 216.1 Purpose.

This part implements section 558,

The National Defense Authorization Act

for Fiscal Year 1995, Pub. L. 103–337

(See 10 U.S.C. section 503 note). It

updates policy and responsibilities for

identifying and taking action regarding

institutions of higher education that

either have a policy of denying or

effectively bar military recruiting

personnel from entry to their campuses,

or from access to student directory

information.

§ 216.2 Applicability.

This part applies to the Office of the

Secretary of Defense, the Military

Departments, the Chairman of the Joint

Chiefs of Staff, the Unified and

Specified Combatant Commands, the

Uniformed Services University of

Health Sciences (USUHS), the Defense

Agencies, and DoD Field Activities

(hereafter referred to collectively as ‘‘the

DoD Components’’). The term ‘‘Military

Services,’’ as used herein, refers to the

Army, the Navy, the Air Force, and the

Marine Corps.

§ 216.3 Definitions.

(a) Directory information. Referring to

a student means the student’s name,

address, telephone listing, date and

place of birth, level of education,

degrees received, and the most recent

previous educational institution

enrolled in by student.

(b) Institution of higher education. A

domestic college, university, or subelement of a university providing postsecondary school courses of study,

including foreign campuses of such

institutions. This includes junior

colleges, community colleges, and

institutions providing courses leading to

undergraduate and post-graduate

degrees. The term ‘‘institution of higher

education’’ does not include entities

that operate exclusively outside the

United States, its territories, and

possessions.

(c) Student. An individual who is 17

years of age or older and enrolled in an

institution of higher education.

§ 216.4 Policy.

(a) Under section 558 of the National

Defense Authorization Act for Fiscal

Year 1995, no funds available to the

Department of Defense (DoD) may be

provided by grant or contract to any

institution of higher education that

either has a policy of denying or that

effectively prevents the Secretary of

Defense from obtaining, for military

recruiting purposes, entry to campuses

or access to students on campuses or

access to directory information

pertaining to students. This prohibition

on use of DoD funds applies only to subelements of an institution of higher

education that are determined to have

such a policy or practice.

(b) An evaluation to determine

whether an institution of higher

education has a policy of denying, or is

effectively preventing, the Secretary of

Defense from obtaining entry to the

campuses, access to students on

campuses, or access to student directory

information shall be undertaken when:

(1) Military recruiting personnel

cannot obtain permission to recruit on

the premises of the institution or when

they are refused directory information.

Military recruiting personnel shall

accommodate an institution’s

reasonable preferences as to times and

places for scheduling on-campus

recruiting, provided that any such

restrictions are not based on the policies

or practices of the Department of

Defense and the Military Services are

provided entry to the campus and

access to students on campus and

directory information; or

(2) The institution is unwilling to

declare in writing as a prerequisite to an