26792 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

application for the IRS individual

taxpayer identification number.

* * * * *

(f) Penalty. For penalties for failure to

supply taxpayer identifying numbers,

see sections 6721 through 6724.

(g) Special rules for taxpayer

identifying numbers issued to foreign

persons—(1) General rule—(i) Social

security number. A social security

number is generally identified in the

records and database of the Internal

Revenue Service as a number belonging

to a U.S. citizen or resident alien

individual. A person may establish a

different status for the number by

providing proof of foreign status with

the Internal Revenue Service under such

procedures as the Internal Revenue

Service shall prescribe, including the

use of a form as the Internal Revenue

Service may specify. Upon accepting an

individual as a nonresident alien

individual, the Internal Revenue Service

will assign this status to the individual’s

social security number.

(ii) Employer identification number.

An employer identification number is

generally identified in the records and

database of the Internal Revenue Service

as a number belonging to a U.S. person.

However, the Internal Revenue Service

may establish a separate class of

employer identification numbers solely

dedicated to foreign persons which will

be identified as such in the records and

database of the Internal Revenue

Service. A person may establish a

different status for the number either at

the time of application or subsequently

by providing proof of U.S. or foreign

status with the Internal Revenue Service

under such procedures as the Internal

Revenue Service shall prescribe,

including the use of a form as the

Internal Revenue Service may specify.

The Internal Revenue Service may

require a person to apply for the type of

employer identification number that

reflects the status of that person as a

U.S. or foreign person.

(iii) IRS individual taxpayer

identification number. An IRS

individual taxpayer identification

number is generally identified in the

records and database of the Internal

Revenue Service as a number belonging

to a nonresident alien individual. If the

Internal Revenue Service determines at

the time of application or subsequently,

that an individual is not a nonresident

alien individual, the Internal Revenue

Service may require that the individual

apply for a social security number. If a

social security number is not available,

the Internal Revenue Service may accept

that the individual use an IRS

individual taxpayer identification

number, which the Internal Revenue

Service will identify as a number

belonging to a U.S. resident alien.

(2) Change of foreign status. Once a

taxpayer identifying number is

identified in the records and database of

the Internal Revenue Service as a

number belonging to a U.S. or foreign

person, the status of the number is

permanent until the circumstances of

the taxpayer change. A taxpayer whose

status changes (for example, a

nonresident alien individual with a

social security number becomes a U.S.

resident alien) must notify the Internal

Revenue Service of the change of status

under such procedures as the Internal

Revenue Service shall prescribe,

including the use of a form as the

Internal Revenue Service may specify.

(3) Waiver of prohibition to disclose

taxpayer information when acceptance

agent acts. As part of its request for an

IRS individual taxpayer identification

number or submission of proof of

foreign status with respect to any

taxpayer identifying number, where the

foreign person acts through an

acceptance agent, the foreign person

will agree to waive the limitations in

section 6103 regarding the disclosure of

certain taxpayer information. However,

the waiver will apply only for purposes

of permitting the Internal Revenue

Service and the acceptance agent to

communicate with each other regarding

matters related to the assignment of a

taxpayer identifying number and change

of foreign status.

(h) Effective date—(1) General rule.

Except as otherwise provided in this

paragraph (h), the provisions of this

section are generally effective for

information that must be furnished after

April 15, 1974. However, the provisions

relating to IRS individual taxpayer

identification numbers apply after May

29, 1996. An application for an IRS

individual taxpayer identification

number (Form W–7) may be filed at any

time on or after July 1, 1996.

(2) Special rules—(i) Employer

identification number of an estate. The

requirement under paragraph

(a)(1)(ii)(C) of this section that an estate

obtain an employer identification

number applies on and after January 1,

1984.

(ii) Taxpayer identifying numbers of

certain foreign persons. The

requirement under paragraph (b)(2)(iv)

of this section that certain foreign

persons furnish a TIN on a return of tax

is effective for tax returns filed after

December 31, 1996.

PART 602—OMB CONTROL NUMBERS

UNDER THE PAPERWORK

REDUCTION ACT

Par. 3. The authority for part 602

continues to read as follows:

Authority: 26 U.S.C. 7805.

Par. 4. In § 602.101, the table in

paragraph (c) is amended by revising the

entry for 301.6109–1 to read as follows:

301.6109–1 .... .......................... 1545–0003

1545–0295

1545–0367

1545–0387

1545–0957

1545–1461

Margaret Milner Richardson,

Commissioner of Internal Revenue.

Approved: May 20, 1996

Leslie Samuels,

Assistant Secretary of the Treasury.

[FR Doc. 96–13397 Filed 5–28–96; 8:45 am]

BILLING CODE 4830–01–U

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 906

[SPATS No. CO–029–FOR]

Colorado Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: Office of Surface Mining

Reclamation and Enforcement (OSM) is

approving a proposed amendment to the

Colorado regulatory program

(hereinafter referred to as the ‘‘Colorado

program’’) under the Surface Mining

Control and Reclamation Act of 1977

(SMCRA). Colorado proposed revisions

to and additions of rules pertaining to

Colorado’s responsibility as regulatory

authority for regulating surface coal

mining and reclamation operations and

coal exploration; definitions;

commercial use or sale of coal extracted

during coal exploration; public

availability of information; right of entry

and operation information; public

notice and comment on permit

applications; procedures for review of

permit applications; criteria for permit

approval or denial; permit conditions;

permit revisions; allowance of selfbonds; terms and conditions for selfbonds; criteria and schedule for release

of performance bonds; termination of

jurisdiction; performance standards for

signs and markers, haul and access

roads, effluent standards for discharges
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26793

of water from areas disturbed by surface

coal mining and reclamation operations,

blasting, and coal mine waste returned

to underground mine workings;

inspection frequency at abandoned

sites; inspections based upon citizen

requests; enforcement actions at

abandoned sites; and show cause orders

and patterns of violations involving

violations of water quality effluent

standards. The amendment was

intended to revise the Colorado program

to be consistent with the corresponding

Federal regulations, incorporate the

additional flexibility afforded by the

revised Federal regulations, and

improve operational efficiency.

EFFECTIVE DATE: May 29, 1996.

FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Telephone: (303) 672–

5524.

SUPPLEMENTARY INFORMATION:

I. Background on the Colorado Program

On December 15, 1980, the Secretary

of the Interior conditionally approved

the Colorado program. General

background information on the

Colorado program, including the

Secretary’s findings, the disposition of

comments, and the conditions of

approval of the Colorado program can

be found in the December 15, 1980,

Federal Register (45 FR 82173).

Subsequent actions concerning

Colorado’s program and program

amendments can be found at 30 CFR

906.15, 906.16, and 906.30.

II. Proposed Amendment

By letter dated November 20, 1995,

Colorado submitted a proposed

amendment to its program

(administrative record No. CO–675)

pursuant to SMCRA (30 U.S.C. 1201 et

seq.). Colorado submitted the proposed

amendment at its own initiative; in

partial response to May 7, 1986, and

March 22, 1990, letters (administrative

record No. CO–282 and CO–496) that

OSM sent to Colorado in accordance

with 30 CFR 732.17(c); and in response

to the requirement that Colorado amend

its program at 30 CFR 906.16(a).

OSM announced receipt of the

proposed amendment in the December

7, 1995, Federal Register (60 FR 62789),

provided an opportunity for a public

hearing or meeting on its substantive

adequacy, and invited public comment

on its adequacy (administrative record

No. CO–675–2). Because no one

requested a public hearing or meeting,

none was held. The public comment

period ended on January 8, 1996.

During its review of the amendment,

OSM identified apparent typographical

errors and a concern relating to the

regulatory authority’s discretionary

acceptance of self bonds. OSM notified

Colorado of the typographical errors and

concern by letter dated January 25, 1996

(administrative record No. CO–675–8).

Colorado responded in a letter dated

February 16, 1996, by submitting a

revised amendment (administrative

record No. CO–675–9).

Based upon the revisions to the

proposed program amendment

submitted by Colorado, OSM reopened

the public comment period in the March

5, 1996, Federal Register (61 FR 8534;

administrative record No. CO–675–10).

The public comment period ended on

March 20, 1996.

III. Director’s Findings

As discussed below, the Director, in

accordance with SMCRA and 30 CFR

732.15 and 732.17, finds that the

proposed program amendment

submitted by Colorado on November 20,

1995, is no less effective than the

corresponding Federal regulations.

Accordingly, the Director approves the

proposed amendment.

1. Nonsubstantive Revisions to

Colorado’s Rules

Colorado proposed revisions to the

following previously-approved rules

that are nonsubstantive in nature and

consist of minor editorial changes

(corresponding Federal regulation

provisions are listed in parentheses):

Rule 2.07.3(3)(a)(iii) (30 CFR 773.13(a)(2)),

concerning the content of Colorado’s written

notice upon receipt of applications, to

replace the word ‘‘submitted’’ with the word

‘‘inspected;’’

Rule 2.07.7(1) (30 CFR 773.17), concerning

permit conditions, to add ‘‘[t]he’’ prior to

‘‘permittee;’’

Rule 2.08.6(2)(b)(iii) (30 CFR 774.17(b)(iii),

concerning transfer, assignment, or sale of

permit rights, to delete an extraneous ‘‘;or’’

at the end of the subsection; and

Rule 4.08.4(10) (30 CFR 816.67(d)(2)(i)),

concerning the table showing the allowed

maximum peak particle velocity in blasting

operations, by replacing the signature for

footnotes ‘‘1’’ and ‘‘2’’ with the symbol ‘‘†.’’

Because the proposed revisions to

these previously-approved Colorado

rules are nonsubstantive in nature, the

Director finds that they are no less

effective than the Federal regulations.

The Director approves these proposed

rules.

2. Substantive Revisions to Colorado’s

Rules That Are Substantively Identical

to the Corresponding Provisions of the

Federal Regulations

Colorado 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 regulation provisions (listed in

parentheses).

Rule 1.04(1) (30 CFR 840.11(g) and

842.11(e)), concerning the definition of

‘‘Abandoned site;’’

Rules 1.04 (31a), (31b), (47a), (71a) (76),

(83b), (116) and (135a) (30 CFR 800.23(a)),

concerning the respective definitions of

‘‘Current liabilities,’’ ‘‘Fixed assets,’’

‘‘Liabilities,’’ ‘‘Net worth,’’ ‘‘Parent

corporation,’’ ‘‘Self-bond,’’ and ‘‘Tangible net

worth;’’

Rule 1.04(92) (30 CFR 700.5), concerning

the definition of ‘‘Person;’’

Rule 2.02.7 (30 CFR 772.14), concerning

the commercial use and sale of coal from

exploration operations;

Rule 2.07.6(2) (30 CFR 773.15(c)),

concerning findings that the State regulatory

authority must make prior to approval of

applications for permits and permit

revisions;

Rules 2.07.7 (6), (7), and (8) (30 CFR 773.17

(a), (b), and (c)), concerning permit

conditions;

Rule 2.08.6(4)(a) (30 CFR 774.17(d)(1)),

concerning approval of transfer, assignment,

or sale of permit rights;

Rules 3.02.4(1)(c) and 3.02.4(2)(e) (30 CFR

800.23 (b) through (f)), concerning the

allowance of self-bonding and the conditions

for approval of self-bonds;

Rules 3.03.3 (1) and (2) (30 CFR 700.11(d)

(1) and (2)), concerning termination of

jurisdiction;

Rule 4.11.3 (30 CFR 816.81(f)), concerning

return of coal mine waste to underground

mine workings;

Rule 5.02.2(4)(b) (30 CFR 840.11(f)(2)),

concerning when the State regulatory

authority can consider an operation an

inactive surface coal mining and reclamation

operation; and

Rules 5.03.2(1)(e) and 5.03.2(2)(h) (30 CFR

843.22), concerning enforcement procedures

at abandoned sites;

Because these proposed Colorado

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 rules.

3. Rules 1.03.1(1)(a), 2.03.3(8), 2.07.3(2),

2.07.3(2) (e) and (f), 2.07.3(3)(a),

2.07.3(4)(a), 2.07.4(2), and 2.07.4(3) (b)

and (c), Permit Applications, Public

Notice Requirements, Permit Review

and Decision, and Bonding

Requirements Prior to Permit Issuance

a. Rules 1.03.1(1)(a), 2.07.3(2),

2.07.3(3)(a), 2.07.3(4)(a), and 2.07.4(2),

Clarification of which permitting

procedures apply to technical revisions,

permit revisions, permits, or renewals of

existing permits. Colorado proposed to

revise Rules 1.03.1(1)(a), 2.07.3(2),

2.07.3(3)(a), 2.07.3(4)(a), and 2.07.4(2),

concerning requirements for (1) the

applicant’s submission of applications,
26794 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

(2) the applicant’s and Colorado’s

responsibility for public notice, and (3)

Colorado’s review of and decisions on

applications, to clarify which rules

apply to technical revisions, permit

revisions, new permits, or renewals of

existing permits. The requirements of

these rules have not otherwise been

revised.

The respective counterpart Federal

regulations at 30 CFR 701.4(a), 30 CFR

773.13(a)(1), 30 CFR 773.13(a)(3), and

30 CFR 773.15(a)(1) set forth the

requirements concerning application

submittal, public notice, and the

regulatory authority’s responsibility for

review and decision for minor revisions,

significant permit revisions, permits,

and permit renewals.

Colorado’s requirements for technical

revisions correspond to the Federal

requirements for minor revisions;

Colorado’s requirements for permits and

permit revisions correspond to the

Federal requirements for permits and

significant permit revisions. Proposed

Rules 1.03.1(1)(a), 2.07.3(2), 2.07.3(3)(a),

2.07.3(4)(a), and 2.07.4(2) clarify the

scope of existing requirements in a

manner that is consistent with and no

less effective than the respective

counterpart Federal regulations at 30

CFR 701.4(a), 30 CFR 773.13(a)(1), 30

CFR 773.13(a)(3), 30 CFR 773.15(a)(1).

Therefore, the Director approves

proposed Rules 1.03.1(1)(a), 2.07.3(2),

2.07.3(3)(a), 2.07.3(4)(a), and 2.07.4(2).

b. Rule 2.03.3(8), number of

applications required to be submitted to

the regulatory authority. Colorado

proposed to revise Rule 2.03.3(8) to

require that three, rather than five,

copies of a permit application with

original signatures be submitted to the

State.

The Federal regulations at 30 CFR

740.13(b)(2) state that, unless specified

otherwise by the regulatory authority,

seven copies of the complete permit

application package shall be filed with

the regulatory authority.

Because Colorado has elected to

specify the number of applications that

must be submitted, Colorado’s proposed

Rule 2.03.3(8) is consistent with and no

less effective than the Federal

regulations at 30 CFR 740.13(b)(2).

Therefore, the Director approves

proposed Rule 2.03.3(8).

c. Rules 2.07.3(2) (e) and (f), Contents

of public notices for operations affecting

public roads. Colorado proposed to

revise Rules 2.07.3(2) (e) and (f),

concerning contents of public notices

for operations in which the applicant

proposes, respectively, (1) that affected

areas would be within 100 feet,

measured horizontally, of a public road

and (2) to close or relocate a public

road. Colorado proposed to add to Rules

2.07.3(2) (e) and (f) the requirement that

the published notices include—

A statement indicating that a public

hearing in the locality of the proposed

mining operation for the purpose of

determining whether the interests of the

public and affected landowners will be

protected may be requested by contacting the

Division in writing within 30 days after the

last publication of the notice.

The Federal regulations at 30 CFR

773.13(a)(1)(v) require that an applicant

(for a permit, significant revision of a

permit, or renewal of a permit), if

seeking a permit to mine within 100

feet, measured horizontally, of the

outside right-of-way of a public road or

to relocate or close a public road, must

place an advertisement in a local

newspaper a concise statement

describing the public road, the

particular part to be relocated or closed,

and the approximate timing and

duration of the relocation or closing.

The Federal regulations at 30 CFR

761.12(d)(2) require, in such cases, that

the regulatory authority or public road

authority designated by the regulatory

authority shall provide an opportunity

for a public hearing in the locality of the

proposed mining operation for the

purpose of determining whether the

interests of the public and affected

landowners will be protected.

The requirement that the applicant

include in its public notice for a permit

application the opportunity for a public

hearing on the affect of mining on

public roads, which Colorado proposes

to add at Rules 2.07.3(2) (e) and (f), is

consistent with and no less effective

than the requirements in the Federal

regulations at 30 CFR 773.13(a)(1) (v)

and 761.12(d)(2). Therefore, the Director

approves proposed Rules 2.07.3(2) (e)

and (f).

d. Rules 2.07.4(3) (b) and (c), the

requirement for performance bond

approval prior to permit issuance.

Colorado proposed to revise Rules

2.07.4(3) (b) and (c), concerning its

decision on a permit application and the

opportunity for public hearing, to clarify

that no permit shall be issued until a

performance bond has been submitted

and approved.

The Federal regulations at (1) 30 CFR

773.15(d) require the regulatory

authority, if it decides to approve a

permit application, to require that the

applicant file the performance bond or

provide other equivalent guarantee

before the permit is issued and (2) 30

CFR 800.11 (a) and (c) require that after

a permit application is approved, but

before any new area is disturbed, that

the applicant submit and the regulatory

authority approve the required

performance bond.

The requirement proposed by

Colorado at Rules 2.07.4(3) (b) and (c),

that no approved permit shall be issued

until a performance bond has been

submitted and approved, is no less

effective than the requirements of the

Federal regulations at 30 CFR 773.15(d)

and 800.11 (a) and (c). Therefore, the

Director approves proposed Rules

2.07.4(3) (b) and (c).

4. Rule 1.04(89), Definition of ‘‘Permit

area’’

Colorado proposed to revise the

definition of ‘‘Permit area’’ at Rule

1.04(89) to (1) include the requirement

that ‘‘the permit area be identified

through a complete and detailed legal

description, as required by Rule 2.03.6,’’

and (2) delete the requirement that the

area ‘‘shall be readily identifiable by

appropriate markers on the site.’’

Colorado stated that Rule 4.02.3 requires

that only the perimeter of all areas

affected by surface operations or

facilities be identified by markers on

site, and does not pertain to the extent

of underground operations.

The Federal definition of ‘‘Permit

area’’ at 30 CFR 701.5 does not include

the requirement for a legal description.

The requirement in Colorado’s proposed

definition of ‘‘Permit area’’ for

identification by legal description

would ensure the identification of the

extent of both surface and underground

coal mining and reclamation operations.

Therefore, the Director finds that

Colorado’s proposed definition of

‘‘Permit area’’ at Rule 1.04(89) is

consistent with and no less effective

than the Federal definition of ‘‘Permit

area’’ at 30 CFR 701.5. The Director

approves proposed Rule 1.04(89).

5. Rule 2.03.4(10), Permit Application

Requirements Concerning Identification

of Interests and Compliance Information

Colorado proposes, at Rule 2.03.4(10),

to delete the requirement for ‘‘a form

approved by the Board’’ on which an

applicant would submit information

required by 2.03.4 and by 2.03.5

(identification of interests and

compliance information). The

requirement that the required

information be submitted in the permit

application is otherwise unaltered.

The Federal regulation at 30 CFR

778.13(j) requires that information

concerning identification of interests be

submitted in any prescribed OSM

format that is issued. The OSM format

would be applicable only where OSM is

the regulatory authority (RA). There is

no requirement in the Federal regulation

for a State RA to design a format.
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26795

Therefore, Colorado’s proposed

deletion of a required format for

information at Rule 2.03.4(10) is no less

effective than the Federal regulation at

30 CFR 778.13(j). The Director approves

proposed Rule 2.03.4(10).

6. Rule 2.03.6(1), Contents of Permit

Applications Pertaining to an

Applicant’s Legal Right to Enter a

Proposed Permit Area

Proposed Rule 2.03.6(1), concerning

the contents of permit applications

pertaining to an applicant’s legal right to

enter a proposed permit area, is, with

one exception, substantively identical to

the Federal regulation at 30 CFR

778.15(a).

The exception is that Colorado

proposed to add the requirement for the

application to contain a ‘‘complete and

detailed legal description of the

proposed permit boundary.’’ The

Federal regulation at 30 CFR 778.15(a)

does not include this requirement.

However, Colorado’s inclusion of the

requirement for a legal description of

the proposed permit boundary to which

the applicant has the legal right to enter

adds specificity and is not inconsistent

with the Federal regulation at 30 CFR

778.15(a).

Therefore, the Director finds that

proposed Rule 2.03.6(1) is no less

effective than the Federal regulation at

30 CFR 778.15(a) and approves it.

7. Rule 2.07.5(2)(c), Notice and Hearing

Procedures for Persons Seeking and

Opposing Disclosure of Confidential

Information

OSM required at 30 CFR 906.16(a) (56

FR 1371, January 14, 1991) that

Colorado amend its program to provide

for notice and hearing procedures for

persons seeking and opposing

disclosure of confidential information.

Colorado proposed a new Rule

2.07.5(2)(c) that states—

(I)nformation requested to be held as

confidential under 2.07.5(2) shall not be

made publicly available until after notice and

opportunity to be heard is afforded persons

seeking disclosure and those persons

opposing disclosure of information and such

information is determined by the Board not

to be confidential, proprietary information.

Information for which disclosure is sought

shall not be made available to those persons

seeking disclosure prior to or during such

opportunity to be heard. Such information

shall not be made available until a final

decision is made by the Board allowing such

disclosure.

The Federal regulations at 30 CFR

773.13(d)(3) require, in part, that the

‘‘regulatory authority shall provide

procedures, including notice and

opportunity to be heard for persons both

seeking and opposing disclosure, to

ensure confidentiality of qualified

confidential information.’’ There is no

requirement in the Federal program that

the procedures be submitted to OSM for

review as a program amendment.

Because Colorado’s proposed Rule

2.07.5(2)(c) provides for notice and

opportunity to be heard for both parties

seeking disclosure and opposing

disclosure of information requested to

be held confidential, the Director finds

that Rule 2.07.5(2)(c) is no less effective

than the 30 CFR 773.13(d)(3) and

satisfies the requirement that Colorado

amend its program at 30 CFR 906.16(a).

Therefore, the Director approves

proposed Rule 2.07.5(2)(c) and removes

the requirement that Colorado amend it

program at 30 CFR 906.16(a).

8. Rules 2.07.6(2)(d) and

2.07.6(2)(d)(iii)(E), Findings Which Must

be Made by the State Regulatory

Authority Prior to Approval of

Applications for Permits and Permit

Revisions

Colorado proposed to revise Rules

2.07.6(2)(d) and 2.07.6(2)(d)(iii)(E),

concerning the findings which must be

documented prior to approval of

applications for permits or permit

revisions, to clarify that the findings

pertaining to lands unsuitable for

mining apply to the proposed ‘‘affected

areas’’ rather than to the operations for

mining coal within those affected areas.

Colorado’s definition of ‘‘affected area’’

at Rule 1.04(17) is no less effective than

the definition of ‘‘affected area’’ in the

Federal regulations at 30 CFR 701.5.

The Federal regulations at 30 CFR

773.15(c)(3) require findings

documenting that the proposed permit

area, subject to valid existing rights, is

(1) not within an area under study or

administrative proceedings under a

petition to have an area designated as

unsuitable for surface coal mining

operations or (2) not within an area

designated as unsuitable for mining.

Because the intent of the regulations

governing lands unsuitable for mining is

to ascertain whether reclamation is

technologically and economically

feasible, Colorado’s proposed revision to

clarify that the findings apply to the

proposed affected areas rather than to

the operations is consistent with the

Federal regulations.

Therefore, the Director finds that

proposed Rules 2.07.6(2)(d) and

2.07.6(2)(d)(iii)(E) are no less effective

than the Federal regulations at 30 CFR

773.15(c)(3). The Director approves

proposed Rules 2.07.6(2)(d) and

2.07.6(2)(d)(iii)(E).

9. Rule 2.07.6(2)(d)(iv), Public Notice

and Opportunity for Public Hearing

Regarding Proposed (1) Operations

Located Within 100 Feet of a Public

Road or (2) Operations Which Require

Closure or Relocation of a Public Road

Colorado proposed to revise Rule

2.07.6(2)(d)(iv) by adding the option for

an appropriate public road authority to

conduct required hearings and make

findings regarding proposed: (1)

Operations located within 100 feet,

measured horizontally, of a public road

or (2) operations which propose to close

or relocate a public road. The revisions

clarify that it is the responsibility of

Colorado to designate a responsible

authority, and that either may approve

public road relocation, closure, or that

the affected area may be within 100 feet

of such road. However, the

aforementioned may be done only after

public notice and opportunity for a

public hearing. Moreover, either must

make a written finding stating that the

interests of the affected public and

landowners will be protected.

The Federal regulations at 30 CFR

761.11(d) provide for either the

regulatory authority or the appropriate

public road authority to provide for

public notice and opportunity for a

public hearing and to make written

findings stating that the interests of the

affected public and landowners will be

protected.

Because proposed Rule

2.07.6(2)(d)(iv) provides for public

notice, opportunity for public hearing,

and requirements for written findings

that may be implemented by an

appropriate public road authority, the

Director finds that proposed Rule

2.07.6(2)(d)(iv) is no less effective than

the Federal regulations at 30 CFR

761.11(d). Therefore, the Director

approves proposed Rule 2.07.6(2)(d)(iv).

10. Rule 2.07.7(9), Permit Condition

Requiring Continuous Bond Coverage

Colorado proposed adding a permit

condition at Rule 2.07.7(9) which

requires continuous bond coverage but

allows for adjustment of the bond

amount from time to time to reflect

changes in the cost of reclamation due

to factors such as inflation and market

forces.

Proposed Rule 2.07.7(9) has no direct

counterpart in the Federal regulations at

30 CFR 773.17 as a condition to a

permit. However, the Federal

regulations at (1) 30 CFR 773.17(a)

require as a permit condition that the

permittee conduct operations only on

those lands that are subject to the

performance bond in effect pursuant to

Subchapter J and (2) 30 CFR 800.4(g)
26796 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

require that the regulatory authority

require in the permit that adequate bond

coverage be in effect at all times.

Because the permit condition at

proposed Rule 2.07.7(9) contains

provisions that are consistent with the

requirements of the Federal regulations

at 30 CFR 773.17(a) and 800.4(g), the

Director finds that proposed Rule

2.07.7(9) is no less effective than these

Federal regulations. The Director

approves proposed Rule 2.07.7(9).

11. Rules 2.08.4 (1) Through (4),

Revisions and Revision Application

Requirements

With two exceptions, Colorado

proposed revisions to Rules 2.08.4 (1)

through (4), concerning revisions and

revision application requirements, that

are editorial in nature. The Federal

regulation at 30 CFR 774.13(b)(2)

requires that the regulatory authority

establish (1) time periods with which it

will act on applications for permit

revisions and (2) the scale or extent of

revisions for which all permit

application information requirements

and procedures shall apply. The

proposed editorial revisions at Rules

2.08.4 (1) through (4) reorganize existing

requirements (without altering the

substance of the requirements) to more

clearly delineate what types of changes

in a proposed operation would require

either a permit revision, a technical

revision, or a minor revision. These

editorial revisions are consistent with

the corresponding Federal regulation at

30 CFR 774.13(b)(2).

The first exception is the proposed

deletion of Rule 2.08.4(1)(c), which

requires that the permittee submit a

permit revision in order to continue

liability insurance policy, capability of

self-insurance, or performance bond,

upon which the original permit was

issued. OSM has no counterpart

requirement to this State rule. The

Colorado rule proposed for deletion is

less effective than the Federal program

in that it would allow an operation to

be permitted without continuous bond

coverage. The deletion of this rule is

consistent with the requirements of the

Federal regulations at 30 CFR 800.15 (a)

through (d) which provide for

adjustments in bond amounts, but

which require continuous bond

coverage.

The second exception is the proposed

addition of Rule 2.08.4(1)(d), which

requires a permit revision for any

extensions to the area covered by a

permit, except for incidental boundary

revisions. The corresponding Federal

regulation at 30 CFR 774.13(d) provides

that any extension to the area covered

by the permit, except for an incidental

boundary revision, shall be made by

application for a new permit. However,

in Colorado’s approved program, the

procedural requirements of Rule 2.07

are the same for permit revisions and

new permit applications. Furthermore,

existing Rule 2.08.4(5)(d) requires for all

types of permit revision applications

such information as may be necessary to

determine if the proposed revision will

comply with Colorado’s approved

program. In the ‘‘Statement of Basis,

Specific statutory Authority, and

Purpose’’ for its August 23, 1988,

amendment (administrative record No.

384), Colorado stated that—

(f) or the Division to make the findings

required by Rule 2.07.6(2), which applies to

‘* * * permit or (permit) revision

applications * * *,’ it will be necessary for

the permittee to submit adequate information

pertaining to baseline, operations plan and

reclamation plan. Additional information

may be requested by the Division if not in

sufficient detail pursuant to Rule 2.08.4(4)(d)

(recodified as Rule 2.08.4(5)(d)).

OSM interprets this as meaning that

all informational requirements

applicable to new permits would also be

applicable to permit revisions when

they involve an extension of area to be

covered by a permit other than an

incidental boundary change.

Based on the above discussion, the

Director finds that the revisions

proposed at Rules 2.08.4 (1) through (4)

are consistent with and no less effective

than the Federal regulations at 30 CFR

774.13(b) (2) and (d) and 800.15 (a)

through (d). The Director approves

proposed Rules 2.08.4 (1) through (4).

12. Rules 2.08.4(6)(b) (i) and (ii), Public

Hearing and Notice Requirements for

Technical Revisions

Colorado proposed recodification of

existing Rules 2.08.4 (4) and (5) as

2.08.4 (5) and (6). In addition, Colorado

proposed: (1) revising Rule

2.08.4(6)(b)(i) to clarify that informal

conference procedures do not apply to

technical revisions, and (2) adding Rule

2.08.4(6)(b)(ii) to provide a 10-day

public comment period for proposed

technical revisions. Colorado’s defines,

at Rule 1.04(136), ‘‘Technical revisions’’

to mean—

A minor change, including incidental

permit boundary revisions, to the terms or

requirements of a permit issued under these

rules, which change shall not cause a

significant alteration in the operator’s

reclamation plan. The term includes, but is

not limited to, increases in coal production,

reduction or termination of approved

environmental monitoring programs, or

design changes for regulated structures or

facilities.

The Federal regulation at 30 CFR

773.13(c) provides that any person may

request an informal conference;

however, this provision is applicable

only to applications for permits,

significant permit revisions, and permit

renewals. There is no Federal provision

applicable to technical revisions as

defined in Colorado’s program.

Therefore, Colorado’s clarification, at

proposed Rule 2.08.4(6)(b)(i), that

informal conference procedures do not

apply to technical revisions is

consistent with the Federal regulations

at 30 CFR 773.13(c).

Technical revisions, as defined in

Colorado’s program, are not subject to

the requirements in the Federal

regulations at 30 CFR 774.13(b)(2) for

notice, public participation, and notice

of decision. These Federal requirements

are applicable to applications for

permits and significant permit revisions.

Therefore, Colorado’s proposed

allowance at Rule 2.08.4(6)(b)(ii) for a

10-day comment period on technical

revisions provides for a greater degree of

public participation than required by

the Federal program.

Based on the above discussion, the

Director finds that the revisions

proposed at Rules 2.08.4(6)(b) (i) and (ii)

are consistent with and no less effective

than the Federal regulations at 30 CFR

773.13(c) and 774.13(b)(2). The Director

approves proposed Rules 2.08.4(6)(b) (i)

and (ii).

13. Rule 3.03.1(5), Release of Bond

Coverage for Liability Associated With

Temporary Drainage and Sediment

Control Facilities

Colorado proposed to add Rule

3.03.1(5) which provides that—

(R)elease of bond coverage for liability

associated with temporary drainage and

sediment control facilities including

impoundments and conveying systems shall

be authorized only after final inspection,

acceptance, and approval by the Division.

Such approval shall be granted based on

determination by the Division that backfilling

and grading, topsoiling, and reseeding of

such facilities have been completed in

compliance with the approved plan.

Vegetative cover must be adequate to control

erosion and similar to the surrounding

reclaimed area. Reclaimed temporary

drainage control facilities shall not be subject

to the extended liability period of 3.03.3(2)

or the bond release criteria of 3.03.1(2).

a. OSM’s policy concerning the term

of liability for reclamation of temporary

sediment control facilities. Section

515(b)(20) of SMCRA provides that the

revegetation responsibility period shall

commence ‘‘after the last year of

augmented seeding, fertilizing,

irrigation, or other work’’ needed to

assure revegetation success. In the
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26797

absence of any indication of

Congressional intent in the legislative

history, OSM interprets this

requirement as applying to the

increment or permit area as a whole, not

individually to those lands within the

permit area upon which revegetation is

delayed solely because of their use in

support of the reclamation effort on the

planted area. As implied in the

preamble discussion of 30 CFR

816.46(b)(5), which prohibits the

removal of ponds or other siltation

structures until 2 years after the last

augmented seeding, planting of the sites

from which such structures are removed

need not itself be considered an

augmented seeding necessitating an

extended or separate liability period (48

FR 44038–44039, September 26, 1983).

The purpose of the revegetation

responsibility period is to ensure that

the mined area has been reclaimed to a

condition capable of supporting the

desired permanent vegetation.

Achievement of this purpose will not be

adversely affected by this interpretation

of section 515(b)(20) of SMCRA since (1)

the lands involved are small in size and

widely dispersed and (2) the delay in

establishing revegetation on these sites

is due not to reclamation deficiencies or

the facilitation of mining, but rather to

the regulatory requirement that ponds

and diversions be retained and

maintained to control runoff from the

planted area until the revegetation is

sufficiently established to render such

structures unnecessary for the

protection of water quality.

Direct support for this proposed

exception from statutory responsibility

period standards can be found in the

fact that, on May 16, 1983, OSM

promulgated 30 CFR 816.22(a)(3) and

817.22(a)(3), which, in analogous

fashion, provide limited exceptions to

the requirement in section 515(b)(5) of

SMCRA that the operator remove and

save topsoil from all lands to be affected

by mining activities. In addition, it may

reasonably be argued that the areas from

which ponds are removed are likely to

be no larger than those areas reseeded

or replanted pursuant to normal

husbandry practices, for which the

Federal regulations do not require

restarting of the revegetation

responsibility period.

However, nothing in this

interpretation of section 515(b)(20) of

SMCRA shall be construed as exempting

such lands from meeting the

revegetation requirements of section

515(b)(19) of SMCRA prior to final bond

release. As required by 30 CFR

816.46(b)(6), when siltation structures

are removed, the land on which they

were located must be regraded and

revegetated in accordance with the

reclamation plan and the requirements

of 30 CFR 816.111 through 816.116,

with the exception of 30 CFR

816.116(c), which requires a period of

extended responsibility for successful

revegetation on reclaimed areas

(September 15, 1993, 58 FR 48333).

b. Comparison of Colorado’s proposed

Rule 3.03.1(5) with OSM’s proposed

policy clarification. Colorado proposed

Rule 3.03.1(5) specifies that a bond

release decision shall be based ‘‘on

determination by the Division that

backfilling and grading, topsoiling, and

reseeding of such facilities has been

completed in compliance with the

approved [reclamation] plan.’’

Vegetative cover must be adequate to

control erosion and similar to the

reclaimed area or surrounding

undisturbed area. Because the reseeding

must be found to be in compliance with

the reclamation plan in the approved

permit, Colorado has ensured that the

vegetation of these reclaimed areas

would be subject to (1) Colorado’s

counterparts to the Federal regulations

at 30 CFR 816.111 and 817.111, and (2)

those portions of Colorado’s

counterparts to the Federal regulations

at 816.116 and 817.116 related to the

attainment of the postmining land use

(other than quantitative measurement

techniques and liability periods).

Because Colorado’s proposed Rule

3.03.1(5) also specifies that vegetative

cover must be adequate to control

erosion and similar to the reclaimed

area or surrounding undisturbed area,

the areas where the temporary sediment

control structures had been located are

expected to be similar to the remainder

of the surrounding reclaimed or

undisturbed area. This requirement

would tend to discourage the removal of

ponds or diversions toward the end of

the liability period for the surrounding

area. If removal of the structures occurs

toward the end of the liability period for

the larger reclaimed area, the areas

where the ponds or diversions existed

would not qualify for final bond release

until reclamation has been established

with some degree of permanence.

Based on the above discussion, the

Director finds that Colorado’s proposed

Rule 3.03.1(5) is consistent with and no

less effective than the Federal

regulations at 30 CFR 817.46(b) (5) and

(6) and sections 515(b) (19) and (20) of

SMCRA, as clarified by OSM in the

September 15, 1993, Federal Register

(58 FR 48333).

14. Rules 4.02.2(2) (a) Through (c),

Information Required on Identification

Signs

Colorado proposed revising Rule

4.02.2(2)(a), concerning the required

information on identification signs

displayed at each point of access to the

permit area from public roads, to

recodify one existing provision as Rule

4.02.2(2)(b), and to add at Rule

4.02.2(2)(c) the requirement that such

signs must include the name, address

and telephone number of the office

where the mining and reclamation

permit is filed. With the exception of

this added requirement, Rules 4.02.2(2)

(a) through (c) are substantively

identical to the Federal regulation at 30

CFR 816.11(c)(2).

Colorado’s proposed inclusion of the

requirement, that the name, address and

telephone number of the office where

the mining and reclamation permit is

filed, provides for information on the

mine identification sign that will

facilitate the public’s ability to

participate in the development,

revision, and enforcement of

regulations, standards, reclamation

plans, or programs established by

Colorado and is, therefore, not

inconsistent with the Federal regulation

at 30 CFR 816.11(c)(2).

Based on the above discussion, the

Director finds that proposed Rules

4.02.2(2) (a) through (c) are no less

effective than the Federal regulation at

30 CFR 816.11(c)(2). The Director

approves Rules 4.02.2(2) (a) through (c).

15. Rules 4.03.1(d) (i) and (ii) and

4.03.2(f) (i) and (ii), Engineer’s

Certification of the construction or

Reconstruction of Haul and Access

Roads

Colorado proposes to revise Rules

4.03.1(d)(i) and 4.03.2(f)(i) to provide an

exemption at Rules 4.03.1(d)(ii) and

4.03.2(f)(ii) from the requirement for an

engineer’s certification of the

construction or reconstruction of haul

and access roads that were completed

prior to August 1, 1995, if the applicant

provides a relevant showing, on a caseby-case basis, which may include

monitoring data or other evidence,

whether the road meets the performance

standards of, respectively, Rules 4.03.1

or 4.03.2.

On August 1, 1995, Colorado

promulgated the existing requirement at

Rules 4.03.1(d)(i) and 4.03.2(f)(i) for

certification of the design and

construction of haul and access roads

not within the disturbed area. Therefore,

proposed Rules 4.03.1(d) (i) and (ii) and

4.03.2(f0 (i) and (ii) provide the

exemption from the certification only
26798 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

for those haul and access roads that

existed prior to the promulgation of the

requirement, i.e., only for existing

structures.

The Federal regulations

corresponding to Rules 4.03.1(1)(d) and

4.03.2(1)(f) are at 30 CFR 816.151(a) ad

817.151(a). These regulations became

effective on December 8, 1988 (53 FR

45190). Like the State rules, they require

the certification of the ‘‘construction

and reconstruction’’ of primary roads,

which are analogous to Colorado’s haul

and access roads.

OSM has implemented these Federal

regulations by requiring the certification

of primary roads that were newly

constructed or reconstructed on or after

December 8, 1998. For a road that

existed prior to December 8, 1988, and

that an operator continued to use

thereafter, OSM has not required a

certification but is has required, in

accordance with 30 CFR 780.12(a)(4)

and 784.12(a)(4), that the operator show

that the road meets the performance

standards of 30 CFR, Subchapter K. The

applicable performance standards in

Subchapter K. The applicable

performance standards in Subchapter K

are at 30 CFR 816.150(b), 816.151 (b)

through (e), 817.150(b), and 817.151 (b)

through (e).

Colorado’s Rule 2.05.3(3)(b)(i)(D) is

similar in its requirements to the

Federal regulations at 30 CFR

780.12(a)(4) and 784.12(a)(4). This State

rule requires for each existing structure

(such as an existing road) a ‘‘[s]howing,

including relevant monitoring data or

other evidence, whether the structure

meets the design requirements or

performance standards of Rule 4.’’

Colorado’s exemption requires that the

applicant show that the existing haul or

access road that existed prior to August

1, 1995, meets the performance

standards of Rule 4.03.2. Rule 4.03.2

contains all of the applicable

performance standards that correspond

to the Federal regulations at 30 CFR

816.150(b), 816.151 (b) through (e),

817.150(b), and 817.151 (b) through (e).

Based on the above discussion, the

Director finds that proposed Rules

4.03.1(d) and 4.03.2(f) are consistent

with and no less effective than the

Federal regulations at 30 CFR 816.151(a)

and 817.151(a), concerning roads, and

780.12(a)(4) and 784.12(a)(4),

concerning existing structures. The

Director approves proposed Rules

4.03.1(d) (i) and (ii) and 4.03.2(f) (i) and

(ii).

16. Rules 4.05.2(7), 5.03.3(1)(a),

5.03.3(2)(a) (i) and (ii), and 5.03.3(20(b),

Compliance with the Effluent

Limitations for Coal Mining

Promulgated by the U.S. Environmental

Protection Agency Set Forth in 40 CFR

Part 434 and Enforcement Procedures

Concerning Violations of Effluent

Limitations

a. Rule 44.05.2(7), Compliance with

effluent limitations for coal mining.

Colorado proposed to revise Rule

4.05.2(7), concerning water quality

standards and effluent limitations, by

adding the requirement that the

discharges of water from areas disturbed

by surface coal mining and reclamation

operations shall be made in compliance

with the effluent limitations for coal

mining promulgated by the U.S.

Environmental Protection Agency set

forth in 40 CFR part 434, as these rules

existed on July 1, 1993.

This requirement is substantively

identical to the Federal requirement at

30 CFR 816.42 and 817.42 with the

exception that the Federal regulations

refer to discharges of water from areas

disturbed by ‘‘surface and underground

mining activities’’ rather than areas

disturbed by ‘‘surface coal mining and

reclamation operations.’’

Colorado defines ‘‘surface coal mining

and reclamation operations’’ at Rule

1.04(133) to mean surface coal mining

operations and all activities necessary

and incident to the reclamation of such

operations. Colorado’s Rule 1.04(132)

defines ‘‘surface coal mining

operations’’ to mean—

(a) (a)ctivities conducted on the surface of

lands in connection with a surface coal mine

or activities subject to the requirements of

Section 34–33–121 of the Act which involve

surface operations and surface impacts

incident to an underground coal mine. * * *

and (b) (t)he areas upon which such activities

occur or where such activities disturb and

natural land surface. Such areas shall also

include an adjacent land the use of which is

incidental to any such activities, * * *.

Section 34–33–121 of the Colorado

Surface Coal Mining Reclamation Act

provides for the surface effects of

underground coal mining and Rule 4

sets forth the minimum performance

standards and design requirements to be

used for surface coal mining and

reclamation operations incident to

underground mining activities.

Colorado defines ‘‘underground mining

activities’’ at Rule 1.04(144) to mean a

combination of

(a) (s)urface operations incident to

underground extraction of coal or in situ

processing, such as * * *; and (b)

(u)nderground operations such as * * *,

subject to review for surface and hydrologic

impacts in accordance with Rules 2 and 4.

The Federal regulations at 30 CFR

701.5 define ‘‘surface mining activities’’

to mean those surface coal mining and

reclamation operations incident to the

extraction of coal from the earth by

removing the materials over a coal seam,

before recovering the coal, by auger coal

mining, or by the recovery of coal from

a deposit that is not in its original

geologic location. In addition, these

Federal regulations define

‘‘underground mining activities’’ to

mean a combination of (a) (s)urface

operations incident to underground

extraction of coal or in situ processing,

such as construction, use, maintenance,

and reclamation of roads, above-ground

repair areas, storage areas, processing

areas, shipping areas, areas upon which

are sited support facilities including

hoist and ventilating ducts, areas

utilized for the disposal and storage of

waste, and areas on which materials

incident to underground mining are

placed; and (b) (u)nderground

operations such as underground

construction, operation, and

reclamation of shafts, adits,

underground support facilities, in situ

processing, and underground mining,

hauling, storage, and blasting.

The term ‘‘underground mining

activities’’ as defined at Colorado’s Rule

1.04(144) is substantively identical to

the counterpart Federal definition of the

same term at 30 CFR 705.1, except

Colorado requires that surface

operations incident to underground

extraction of coal or in situ processing

and underground operations are subject

to review for surface and hydrologic

impacts in accordance with Rules 2 and

4.

Based upon the reference at Rule

1.04(132) to Colorado’s Act and Rule 4,

which in turn pertain to the surface

effects of underground coal mining and

underground mining activities, the use

of the term ‘‘surface coal mining and

reclamation operations’’ at Rule

4.05.2(7) is no less effective that the

Federal regulations at 30 CFR 816.42

and 817.42 which pertain to surface

mining activities and underground

mining activities.

Therefore, based upon the above

discussion the Director finds that

Colorado’s proposed Rule 4.05.2(7) is

consistent with and no less effective

than the Federal regulations at 30 CFR

816.42 and 817.42 pertaining to water

quality standards and effluent

limitations. The Director approves

proposed Rule 4.05.2(7).

b. Rules 5.03.3(1)(a) and

5.03.3(2)(1)(1), (2)(a)(ii), and (2)(b),

Enforcement procedures concerning

violations of effluent limitations.

Colorado proposed to revise Rule
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26799

5.03(1)(a), concerning show cause

orders, and Rules 5.03.3(2)(a) (i) and (ii)

and 5.03.3(2)(b), concerning patterns of

violations, to add new language

providing that—

Notices of violation issued by the Water

Quality Control Division which cite a one

day exceedance of the water quality effluent

standards referenced in 4.05.22 shall be

included by the Division in determining

whether a pattern of violations exists.

The Federal regulations at 30 CFR

843.13(a)(1), (2), and (3) which are the

Federal counterpart provisions for

orders to show cause when it is

determined that a pattern of violations

exists or has existed, do not contain a

separate requirements that notices of

violations of the water quality effluent

standards shall be considered by the

Director in determining whether a

pattern of violations exists. However,

these same Federal regulations do not

exclude violations of water quality

effluent limitations from the violations

reviewed to determine whether a

pattern of violations exists or has

existed. In addition, section 521(d) of

SMCRA provides that

(a)s a condition of approval of any State

program submitted pursuant to section 503 of

this Act, the enforcement provisions thereof

shall, at a minimum, incorporate sanctions

no less stringent than those set forth in this

section, and shall contain the same or similar

procedural requirements relating thereto.

Nothing herein shall be construed so as to

eliminate any additional enforcement rights

or procedures which are available under

State law to a State regulatory authority by

which are not specifically enumerated

herein.

Colorado’s proposed Rules

5.03.3(1)(a), 503.3(2)(a), (i) and (ii), and

5.03.3(2)(b) provide for enforcement

procedures that are not specified in the

Federal regulations at 30 CFR 843.12(a)

(1), (2), and (3). However, the

enforcement procedures are consistent

with these Federal regulations and with

section 521(d) of SMCRA.

Therefore, the Director finds that

proposed Rules 5.03.3(1)(a), 503.3(2)(a)

(i) and (ii), and 5.03.3(2)(b) are no less

stringent than section 521(d) of SMCRA

and no less effective than the Federal

regulations at 30 CFR 843.13(a) (1), (2)

and (3). The Director approves proposed

Rules 5.03.3(1)(a), 5.03(2)(a) (i) and (ii),

and 5.03.3(2)(b).

17. Rule 4.08.3(2)(b)(i), Blasting Areas

Colorado proposed to revise Rule

4.08.3(2)(b)(i), concerning blasting areas

identified in the blasting schedule, by

deleting the requirement for specific

approval of a blasting area in excess of

300 acres.

The Federal regulations at 30 CFR

864.64(a)(1) do not place limits on

blasting areas, but allow the regulatory

authority to limit the area covered,

timing, and sequence of blasting as

listed in the schedule, if such

limitations are necessary and reasonable

in order to protect the public health and

safety or welfare. With the deletion of

the requirement for approval of a

blasting area in excess of 300 acres,

Colorado’s proposed Rule 4.08.3(2)(b)(i)

is substantively identical to the

requirement in the Federal regulations

at 30 CFR 816.64(c)(2) which requires

that the blasting schedule shall contain

identification of the specific areas in

which blasting will take place.

Therefore, the Director finds that (1)

Colorado’s proposed deletion of the

requirement for approval of a blasting

area in excess of 300 acres from Rule

4.08.3(2)(b)(i) is consistent with and no

less effective than the Federal

regulations at 30 CFR 864.64(a) (1) and

(2) proposed Rule 4.08.3(2)(b)(i) is no

less effective than the Federal

regulations at 30 CFR 816.64(c)(2). The

Director approves proposed Rule

4.08.3(2)(b)(i).

18. Rules 5.02.5(1), 5.02.5(1)(a), and

5.02.5(1)(b)(i), Inspections Based Upon

a Citizens’ Requests

a. Rule 5.02.5 (1) and (1)(a), A

person’s right to request and inspection

and Colorado’s response time to a

person’s request for an inspection.

Colorado proposed to revise Rule

5.02.5(1) to provide that any person who

believes there is a violation of

Colorado’s approved program or permit

conditions, or that any imminent danger

or harm exists, may request an

inspection for violations. Colorado

proposed to revise Rule 5.02.5(1)(a) to

add the provision that the State will

conduct such an inspection within 10

days of receipt of a written request, but

that if the request gives Colorado

sufficient basis to believe that imminent

danger or harm exists, the inspection

shall be conducted no later than the

next day, following the receipt of such

a request.

The Federal regulation at 30 CFR

840.11(b)(1)(i) provides that OSM shall

immediately conduct a Federal

inspection when it has reason to believe

on the basis of information available

(other than information resulting from a

previous Federal inspection) that there

exists a violation of the Federal

program, permit condition, or that there

exists any condition, practice, or

violation which creates an imminent

danger to the health or safety of the

public or is causing or could reasonably

be expected to cause a significant,

imminent environmental harm to land,

air, or water resources.

Colorado’s proposed Rule 5.02.5 (1)

and (1)(a) differ from the Federal

regulation at 30 CFR 840.11(b)(1)(i) in

that they distinguish between those

citizen’s requests that provide sufficient

basis to believe that imminent danger or

harm exists and those that do not.

Colorado has, in effect, defined in its

proposed rules the term ‘‘immediately’’

which is not defined in the Federal

program, nor is it discussed in the

preamble to the Federal regulations. The

Federal regulations at 30 CFR

840.11(b)(1) do not make a distinction

in response time between whether or

not a citizen’s request provides

sufficient reason to believe that

imminent danger or harm exists.

However, Colorado’s proposal to

determine the response time to a

citizen’s request for an inspection, based

on whether there is reason to believe

there exists imminent harm or danger, is

a reasonable interpretation of the

Federal regulations and one that would

not result in a response or an inspection

that would be less effective than the one

required in the Federal regulations.

Therefore, the Director finds that

Colorado’s proposed Rules 5.02.5 (1)

and (1)(a) are consistent with and no

less effective than the Federal regulation

at 30 CFR 840.11(b)(1)(i). The Director

approves proposed Rule 5.02.5 (1) and

(1)(a).

b. Rule 5.02.5(1)(b) (i) and (ii), When

a citizen’s request for inspection gives

sufficient reason to believe that there is

cause for an inspection. Colorado

proposed to revise Rule 5.02.5(1)(b),

which defines when it will have

sufficient basis to believe there is cause

for an inspection requested by a citizen,

by replacing the word ‘‘and’’ with the

word ‘‘or’’ between paragraphs (i) and

(ii), so that these proposed rules define

the ‘‘sufficient basis to believe’’ exists

when

(i) (T)he request alleges facts that, if true,

would constitute any of the above-described

violations; or

(ii) (T)he request either states the basis

upon which the facts are known by the

requesting citizen or provides other

corroborating evidence sufficient to give the

Division a basis to believe that the violation

has occurred.

The corresponding Federal regulation

at 30 CFR 842.11(b)(2) states that an

authorized representative shall have

reason to believe that a violation,

condition or practice exists if the facts

alleged by the informant would, if true,

constitute a condition, practice or

violation referred to in 30 CFR 842.11

(b)(1)(i).
26800 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

Colorado’s existing Rule 5.02.5(1)(b)(i)

is substantially identical to the Federal

regulation at 30 CFR 842.11(b)(2).

Existing Rule 5.02.5(1)(b)(ii) provides a

more stringent condition than does

Colorado’s Rule 5.02.5(1)(b) (i) and the

Federal regulation at 30 CFR

842.11(b)(2). However, proposed Rules

5.02.5(1)(b) (i) and (ii) no longer require

that a citizen’s request for an inspection

meet the criterium of Rule

5.02.5(1)(b)(ii), but provide that the

criterium at Rule 5.02.5(1)(b)(ii) is

optional.

Therefore, the Director finds that

Colorado’s proposed Rules 5.02.5(1)(b)

(i) and (ii) are no less effective than the

Federal regulation at 30 CFR

842.11(b)(2) in responding to a citizen’s

complaint. The Director approves

proposed Rules 5.02.5(1) (b) (i) and (ii).

19. Rules 5.02.2(8) (a) Through (c),

Inspection Frequency at Abandoned

Sites; and Rule 5.03.2(3), Enforcement

Procedures at Abandoned Sites

a. Rules 5.02.2(8) (a) through (c),

Inspection frequency at abandoned

sites. Colorado proposed adding Rules

5.02.2(8) (a), (b), and (c), to identify the

criteria and requirements for public

notice that must be implemented for

determining the inspection frequency of

abandoned sites.

Proposed Rules 5.02.2(8)(a), (b), and

(c) are, with one exception,

substantively identical to the Federal

regulations at 30 CFR 840.11(h) (1) and

(2). The exception is proposed Rule

5.02.2(8)(c), which states that—

(T)he Division shall implement a final

inspection frequency based on its findings

and any additional information received

during the comment period.’’ Proposed Rule 5.02.2(8)(c) has no

counterpart in the Federal program.

This is a declarative statement of the

duties of the regulatory authority and

does not alter the substance of the

requirements concerning the criteria

and the requirements for public notice

that must be used when determining the

inspection frequency of abandoned

sites.

Therefore, based on the above

discussion, the Director finds that

proposed Rules 5.02.2(8) (a) through (c)

are no less effective than the respective

Federal regulations at 30 CFR 840.11(h)

(1) and (2). The Director approves

proposed Rules 5.02.2(8) (a) through (c).

b. Rule 5.03.2(3), Enforcement

procedures at abandoned sites.

Colorado proposed revising Rule

5.03.2(3), concerning notices of

violation and subsequent failure-toabate cessation orders (FTACO), by

adding the statement that Colorado—

May refrain from issuing a failure-to-abate

cessation order for such failure to abate a

violation or failure to accomplish an interim

step, if the operation is an abandoned site as

defined in 1.04(1).

Existing Rule 5.03.2(3) is

substantively identical to 30 CFR

843.11(b)(1). However, there is no

provision at 30 CFR 843.11(b)(1)

concerning enforcement of notices of

violation at abandoned sites. The

Federal regulations at 30 CFR 843.22

provide that a cessation order need not

be issued at an abandoned site if

abatement of the violation is required

under any previously issued notice or

order. Colorado’s proposed allowance at

Rule 5.03.2(3) to refrain from issuing an

FTACO if the site qualifies as an

abandoned site would apply only when

abatement of the violation is already

required under a previously issued

notice of violation.

Therefore, based on the above

discussion, the Director finds that

proposed Rule 5.03.2(3) is no less

effective than 30 CFR 843.22. The

Director approves proposed Rule

5.03.2(3).

IV. Summary and Disposition of

Comments

Following are summaries of all

substantive oral and written comments

on the proposed amendment that were

received by OSM, and OSM’s responses

to them.

1. Public Comments

OSM invited public comments on the

proposed amendment, but none were

received.

2. Federal Agency Comments

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

solicited comments on the proposed

amendment from various Federal

agencies with an actual or potential

interest in the Colorado program.

The U.S. Forest Service responded on

December 15, 1995, and March 26, 1996,

that it had no comments on the

proposed amendment (administrative

record Nos. CO–675–3 and CO–675–13).

The U.S. Natural Resources

Conservation Service responded on

December 20 and 21, 1995, that it had

no comments on the proposed

amendment (administrative record No.

CO–675–4).

The U.S. Army Corps of Engineers

responded on December 27, 1995, that

it had found the proposed amendment

to be satisfactory (administrative record

No. CO–675–5).

The U.S. Mine Safety and Health

Administration (MSHA) responded on

December 27, 1995, and March 20, 1996,

that the proposed amendment did not

conflict with MSHA standards

(administrative record Nos. CO–675–7

and CO–675–12).

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.).

OSM solicited EPA’s concurrence

with the proposed amendment

(administrative record CO–675–1). On

April 10, 1996, EPA gave its written

concurrence and stated that it had no

comments on the proposed revisions

(administration record No. CO–675–14).

4. State Historic Preservation Officer

(SHPO) and the Advisory Council on

Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM

solicited comments on the proposed

amendment from the SHPO and ACHP

(administrative record No. CO–675–1).

Neither the SHPO nor ACHP responded

to OSM’s request.

V. Director’s Decision

Based on the above findings, the

Director approves Colorado’s proposed

amendment as submitted on November

20, 1995, and revised on February 16,

1996, and removes the requires

amendment at 30 CFR 906.16(a).

The Director approves, as discussed

in:

Finding No. 1, Rule 2.07.3(a)(iii), Rule

2.07.7(1), Rule 2.08.6(2)(b)(iii), and Rule

4.08.4(10), concerning nonsubstantive

revisions to previously approved rules

that consist of editorial revisions;

Finding No. 2, Rules 1.04(1), 1.04

(31a), (31b), (47a), (71a), (76), (83b), (92),

(116), and (135a); Rule 2.02.7; Rule

2.07.6(2); Rules 2.07.7 (6), (7), and (8);

Rule 2.08.6(4)(a); Rules 3.02.4(1)(c) and

3.02.4(2)(e); Rules 3.03.3 (1) and (2);

Rule 4.11.3; Rule 5.02.2(4)(b); and Rules

5.03.2(1)(e) and 5.03.2(2)(h); concerning

substantive revisions to previously

approved rules that are substantively

identical to the Federal regulations;

Finding No. 3, Rules 1.03.1(1)(a),

2.03.3(8), 2.07.3(2), 2.07.3(2) (e) and (f),

20.07.3(3)(a), 2.07.3(4)(a), 2.07.4(2), and

2.07.4(3) (b) and (c), concerning permit

applications, public notice

requirements, permit review and

decision, and bonding requirements

prior to permit issuance;

Finding No. 4, Rule 1.04(89),

concerning the definition of ‘‘Permit

area;’’

Finding No. 5, Rule 2.03.4(10),

concerning permit application

requirements concerning identification

of interests and compliance information;
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26801

Finding No. 6, Rule 2.03.6(1),

concerning contents of permit

applications pertaining to an applicant’s

legal right to enter a proposed permit

area;

Finding No. 7, Rule 2.07.5(2)(c),

concerning notice and hearing

procedures for persons seeking and

opposing disclosure of confidential

information;

Finding No. 8, Rules 2.07.6(2)(d) and

2.07.6(2)(d)(iii)(E), concerning findings

which must be made by the State

regulatory authority prior to approval of

applications for permits and permit

revisions;

Finding No. 9, Rule 2.07.6(2)(d)(iv),

concerning public notice and

opportunity for public hearing regarding

proposed (1) operations located within

100 feet, measured horizontally, of a

public road or (2) operations which

require closure or relocation of a public

road;

Finding No. 10, Rule 2.07.7(9),

concerning permit conditions requiring

continuous bond coverage;

Finding No. 11, Rules 2.08.4 (1)

through (4), concerning permit revisions

and permit revision application

requirements;

Finding No. 12, Rules 2.08.4(6)(b) (i)

and (ii), concerning public hearing and

notice requirements for technical

revisions;

Finding No. 13, Rule 3.03.1(5),

concerning release of bond coverage for

liability associated with temporary

drainage and sediment control facilities;

Finding No. 14, Rules 4.02.2(2) (a)

through (c), concerning information

required on identification signs;

Finding No. 15, Rules 4.03.1(d) (i) and

(ii) and 4.03.2(f) (i) and (ii), concerning

an engineer’s certification of the

construction or reconstruction of haul

and access road;

Finding No. 16, Rules 4.05.2(7),

5.03.3(1)(a), 5.03.3(2)(a) (i) and (ii), and

5.03.3(2)(b), concerning (1) compliance

with the effluent limitations for coal

mining promulgated by the U.S.

Environmental Protection Agency set

forth in 40 CFR part 434 and (2)

enforcement procedures concerning

violations of effluent limitations;

Finding No. 17, Rule 4.08.3(2)(b)(i),

concerning blasting areas;

Finding No. 18, Rules 5.02.5(1),

5.02.5(1)(a), and 5.02.5(1)(b)(i),

concerning inspections based upon

citizens’ requests; and

Finding No. 19, Rules 5.02.2(8) (a)

through (c), concerning inspection

frequency at abandoned sites, and Rule

5.03.2(3), concerning enforcement

procedures at abandoned sites.

The Federal regulations at 30 CFR

part 906, codifying decisions concerning

the Colorado 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.

IV. Procedural Determinations

1. Executive Order 12866

This rule is exempted form review by

the Office of Management and Budget

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

2. Executive Order 12988

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988

(Civil Justice Reform) and has

determined that this rule meets the

applicable standards of subsections (a)

and (b) of that section. However, these

standards are not applicable to the

actual language of Tribe or State AMLR

plans and revisions thereof since each

such plan is drafted and promulgated by

a specific Tribe or State, not by OSM.

Decisions on proposed Tribe or State

AMLR plans and revisions thereof

submitted by a Tribe or State are based

on a determination of whether the

submittal meets the requirements of

Title IV of SMCRA (30 U.S.C. 1231–

1243) and the applicable Federal

regulations at 30 CFR parts 884 and 888.

3. National Environmental Policy Act

No environmental impact statement is

required for this rule since agency

decisions on proposed Tribe or State

AMLR plans and revisions thereof are

categorically excluded from compliance

with the National Environmental Policy

Act (42 U.S.C. 4332) by the Manual of

the Department of the Interior (516 DM

6, appendix 8, paragraph 8.4B(29)).

4. Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The Tribe or State

submittal which is the subject of this

rule is based upon Federal regulations

for which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements established by

SMCRA or previously promulgated by

OSM will be implemented by the Tribe

or State. In making the determination as

to whether this rule would have a

significant economic impact, the

Department relied upon the data and

assumptions in the analyses for the

corresponding Federal regulations.

6. Unfunded Mandates Reform Act

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 906

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 7, 1996.

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 906—COLORADO

1. The authority citation for Part 906

continues to read as follows:

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

2. Section 906.15 is amended by

adding paragraph (u) to read as follows:

§ 906.15 Approval of amendments to the

Colorado regulatory program.

* * * * *

(u) The Director approves the

proposed revisions submitted by

Colorado on November 20,1 995, and

revised on February 16,1 996.

3. Section 906.16 is amended by

removing and reserving paragraph (a) to

read as follows:

§ 906.16 Required program amendments.

* * * * *

(a)–(c) [Reserved.]

* * * * *

[FR Doc. 96–13266 Filed 5–28–96; 8:45 am]

BILLING CODE 4310–05–M

30 CFR Part 913

[SPATS No. IL–089–FOR]

Illinois Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.