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###### Department of the Interior

###### Office of Surface Mining Reclamation and Enforcement

          - 30 CFR Part 944
          - [SPATS No. UT-038-FOR] 

# AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

# ACTION:

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

# SUMMARY:

The Office of Surface Mining Reclamation and Enforcement (OSM) is reopening the public comment period for revisions to a proposed amendment to the Utah regulatory program (hereinafter, the “Utah program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Utah proposes to revise its amendment to change design requirements for temporary impoundments that function as sedimentation ponds. The State also proposes one minor editorial change. Utah intends to revise its program to make it consistent with the corresponding Federal regulations. We are reopening the comment period to allow for public review of Utah's revisions to its amendment.

# DATES:

We will accept written comments on this amendment until 4:00 p.m., mountain standard time January 24, 2001.

# ADDRESSES:

You should mail, hand deliver or e-mail your written comments to James F. Fulton, Denver Field Division Chief, at the address listed below.

You may review copies of the Utah program, this amendment, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSM's Denver Field Division.

James F. Fulton, Denver Field Division Chief, Office of Surface Mining, Western Regional Coordinating Center, 1999 Broadway, Suite 3320, Denver, Colorado, 80202-5733, telephone (303)844-1400, extension 1424.

Lowell P. Braxton, Director, Division of Oil, Gas and Mining, 1594 West North Temple, Suite 1210, P.O. Box 14581, Salt Lake City, Utah 84114-5801, telephone (801)538-5370.

# FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Denver Field Division Chief, telephone (303)844-1400, extension 1424; e-mail address jfulton@osmre.gov.

# SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program.

II. Description of the Proposed Amendment.

III. Public Comment Procedures.

IV. Procedural Determinations.

## I. Background on the Utah Program

                    On January 21, 1981, the Secretary of the Interior conditionally approved the Utah program. You can find background information on the Utah program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Utah program in the January 21, 1981,                     **Federal Register**                     (46 FR 5899). You can also find later actions concerning Utah's program and program amendments at 30 CFR 944.15 and 944.30.                

## II. Description of Proposed Amendment

                    By letter dated December 23, 1999 (administrative record No. 1133), Utah sent to us a proposed amendment (UT-038-FOR) to its program under SMCRA (30 U.S.C. 1201*et seq.*). It sent the proposed Utah Administrative (Utah Admin. R.) amendment in response to a June 18, 1997, letter (administrative record No. UT-1093) that we sent to the State under 30 CFR 732.17(c). Utah originally proposed to change its rules pertaining to: Definitions of “abandoned site,” “other treatment facilities,” “previously mined area,” “qualified laboratory,” and “significant recreational, timber, economic, or other values incompatible with coal mining and reclamation operations,” engineering requirements for impoundments and for backfilling and grading; hydrologic requirements for impoundments; requirements for bond release applications; prime farmland acreage; inspection frequency for abandoned sites; and the period in which to pay a penalty when requesting a formal hearing.                

                    We announced receipt of the proposed amendment in the January 14, 2000,                     **Federal Register**                     (65 FR 2364; administrative record No. UT-1136), provided an opportunity for a public hearing or meeting, and invited public comment on its adequacy. We did not hold a public hearing or meeting because nobody requested either one. The public comment period ended on February 14, 2000.                          ( print page 1617)    

                    During our review of the amendment, we identified a concern relating to the provision of Utah Admin. R. 645-301-742.225.2, which is part of the State's hydrology requirements for sedimentation ponds. Utah intended this proposed rule to provide an exception to the location guidance for certain temporary impoundments functioning as sedimentation ponds that                     *do not*                     meet the design criteria of the Natural Resources Conservation Service's Technical Release Number 60 or the size or other criteria of 30 CFR 77.216(a). However, the proposed rule repeated the same wording the State proposed at Utah Admin. R. 645-301-742.224.1, which applies to temporary impoundments that do meet the criteria of TR-60 or the size or other criteria of 30 CFR 77.216(a). We notified Utah of our concern by letter dated April 17, 2000 (administrative record No. UT-1142). The State formally responded to our concern in a letter dated November 27, 2000, by submitting a proposed revision (administrative record No. UT-1147).                

                    The State now proposes two specific changes. First, it proposes an editorial change by adding the word “where” at the end of the clause in Utah Admin. R. 645-301-752.225 to read “An exception to the sediment pond location guidance in R645-301-742.224 may be allowed                     *where:*                     * * *” (emphasis added). Second, Utah proposes to delete wording of Utah Admin. R. 645-301-742.225.2 that repeated the preceding rule at R.646-301-742.225.1 and replace it with the following sentence: “Impoundments not included in R645-301-742.225.1 shall be designed to control the precipitation of the 100-year 6-hour event, or greater event if specified by the Division.”                

## III. Public Comment Procedures

We are reopening the comment period on the proposed amendment at Utah Admin. R. 645-301-742.225 to give you an opportunity to consider the revision we received.

## Written Comments

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

## Electronic Comments

Please submit Internet comments as an ASCII file and do not use special characters or any form of encryption. Please also include “Attn: SPATS No. UT-038-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Denver Field Division at telephone number (303) 884-1400, extension 1424.

## Availability of Comments

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

## IV. Procedural Determinations

### Executive Order 12630—Takings

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

### Executive Order 12866—Regulatory Planning and Review

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

### Executive Order 12988—Civil Justice Reform

The Department of the Interior conducted the reviews required by section 3 of Executive Order 12988 and determined that, to the extent allowable by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

### Executive Order 13132—Federalism

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. This rule does not have Federalism implications.

### National Environmental Policy Act

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

### Paperwork Reduction Act

                    This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507*et seq.*).                

### Regulatory Flexibility Act

                    The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601*et seq.*). The State submittal that is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule                           ( print page 1618)                        would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.                

### Small Business Regulatory Enforcement Fairness Act.

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

### Unfunded Mandates

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

# List of Subjects in 30 CFR Part 944

      - Intergovernmental relations
      - Surface mining
      - Underground mining

Dated: December 14, 2000.

James F. Fulton,

Acting Regional Director, Western Regional Coordinating Center.

[FR Doc. 01-558  Filed 1-8-01; 8:45 am]

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