94-8320. Utah Permanent Regulatory Program  

  • [Federal Register Volume 59, Number 67 (Thursday, April 7, 1994)]
    [Unknown Section]
    [Page 0]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 94-8320]
    
    
    [[Page Unknown]]
    
    [Federal Register: April 7, 1994]
    
    
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    DEPARTMENT OF THE INTERIOR
    
    Office of Surface Mining Reclamation and Enforcement
    
    30 CFR Part 944
    
     
    
    Utah Permanent Regulatory Program
    
    AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
    Interior.
    
    ACTION: Final rule; approval of proposed amendment.
    
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    SUMMARY: OSM is announcing its decision to approve an amendment to the 
    approved Utah permanent regulatory program (the Utah program) under the 
    Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 
    1201-1328. The amendment consists of changes to provisions of the Utah 
    Coal Mining Rules pertaining to the definitions of ``affected area,'' 
    ``road,'' and ``public road.'' The amendment revises the Utah program 
    to be consistent with the corresponding Federal regulations.
    
    EFFECTIVE DATE: April 7, 1994.
    
    FOR FURTHER INFORMATION CONTACT: Robert H. Hagen, Telephone (505) 766-
    1486.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Background on the Utah Program
    II. Submission of Proposed Amendment
    III. Director's Findings
    IV. Summary and Disposition of Comments
    V. Director's Decision
    VI. Procedural Determinations
    
    I. Background on the Utah Program
    
        On January 21, 1981, the Secretary of the Interior conditionally 
    approved the Utah program for the regulation of coal exploration and 
    coal mining and reclamation operations on non-Federal and non-Indian 
    lands. General background information on the Utah program, including 
    the Secretary's findings, the disposition of comments, and an 
    explanation of the conditions of approval, appears in the January 21, 
    1981, Federal Register (46 FR 5899). Actions taken subsequent to 
    approval of the Utah program are codified at 30 CFR 944.15, 944.16, and 
    944.30.
    
    II. Submission of Proposed Amendment
    
        By letter dated September 17, 1992 (administrative record No. UT-
    782), Utah submitted to OSM, under SMCRA and the Federal regulations 
    implementing SMCRA at 30 CFR chapter VII (the Federal regulations), a 
    proposed amendment to the Utah program. Utah submitted the proposed 
    amendment in response to a September 4, 1992, agreement (administrative 
    record No. UT-778) between Utah and OSM concerning the regulation of 
    coal mine access and haul roads (mine roads) in Utah and as required by 
    OSM at 30 CFR 944.16 (n) and (o). The proposed amendment consists of 
    revised definitions of the terms ``affected area,'' ``road,'' and 
    ``public road'' at Utah Administrative Rule (Utah Admin. R.) 645-100-
    200.
        OSM announced receipt of the proposed amendment in the November 16, 
    1992, Federal Register (57 FR 54032), and, in the same notice, opened 
    the public comment period and offered to hold a hearing on the 
    substantive adequacy of the proposed amendment (administrative record 
    No. UT-800). The public comment period closed on December 16, 1992.
        Following the close of the comment period and during its review of 
    the proposed amendment, OSM identified certain concerns regarding 
    whether the proposed amendment was, as required by 30 CFR 732.15(a), in 
    accordance with SMCRA and consistent with the Federal regulations. OSM 
    notified Utah of these concerns by letter dated January 21, 1993 
    (administrative record No. UT-817).
        By letter dated February 16, 1993, Utah submitted to OSM additional 
    material, including a revision to the proposed amendment 
    (administrative record No. UT-824). However, OSM identified certain 
    concerns with this revision and notified Utah of these concerns by 
    telephone on March 4, 1993 (administrative record No. UT-825).
        By letter dated March 24, 1993, Utah submitted to OSM additional 
    revisions to the proposed amendment (administrative record No. UT-827).
        OSM announced receipt of the March 24, 1993, revisions to the 
    proposed amendment in the April 8, 1993, Federal Register (58 FR 
    18187), and, in the same notice, reopened the public comment period on 
    the revised proposed amendment (administrative record No. UT-830). The 
    comment period ended on April 23, 1993.
        By letter to Utah dated May 19, 1993 (administrative record No. UT-
    842), OSM found that provision II.1 of the September 4, 1992, agreement 
    was not valid. In addition, OSM qualified the applicability of 
    provision II.2 of the same agreement.
        By letter dated June 22, 1993 (administrative record No. UT-847), 
    Utah responded to OSM's May 19, 1993, letter and stated its 
    interpretation of and intentions with respect to the September 4, 1992, 
    agreement.
        By letter dated July 1, 1993 (administrative record No. UT-845), 
    the Joint National Coal Association/American Mining Congress Committee 
    on Surface Mining Regulations requested that OSM reopen the comment 
    period for Utah's proposed amendment to allow additional public comment 
    on the effect of OSM's May 19, 1993, letter on the September 4, 1992, 
    agreement and the proposed amendment.
        OSM published a notice in the July 29, 1993, Federal Register (58 
    FR 40608) reopening and extending the public comment period to allow 
    the public the opportunity to comment on the effect that the invalid 
    part of the September 4, 1992, agreement would have on Utah's proposed 
    amendment (administrative record No. UT-850). The extended public 
    comment period ended on August 13, 1993. The proposed amendment, as 
    revised on March 24, 1993, is the subject of this notice.
    
    III. Director's Findings
    
        After a thorough review, pursuant to SMCRA and the Federal 
    regulations at 30 CFR 732.15 and 732.17, the Director finds that Utah's 
    proposed amendment to its definitions of ``affected area,'' ``road,'' 
    and ``public road,'' as submitted by Utah on September 17, 1992, and as 
    revised by it on March 24, 1993, is no less stringent than SMCRA and no 
    less effective than the Federal regulations.
    
    A. Background on Proposed Amendment
    
        On February 25, 1991, Utah adopted certain revisions to its 
    definitions of ``road'' and ``public road'' at Utah Admin. R. 645-100-
    200, along with a supplemental policy statement. On March 1, 1991, 
    Utah, as required by 30 CFR 732.17, submitted those revisions and the 
    supplemental policy statement to OSM for approval (administrative 
    record No. UT-610).
        OSM did not approve in part the March 1, 1991, submittal in a final 
    rule published in the Federal Register (56 FR 58846, November 22, 1991) 
    (the final roads rule). In the final roads rule, OSM found that the 
    definition of ``surface coal mining operations'' at section 701(28) of 
    SMCRA, 30 U.S.C. 1291(28), and its counterpart in the Utah program 
    require the regulation of certain public roads (56 FR 58846, 68847-49, 
    November 22, 1991). OSM also found that, when determining whether a 
    road is subject to regulation under SMCRA and the Utah program, the 
    regulatory authority must consider the extent and effect of the mining-
    related use of the road (56 FR 58846, 58847-49, 58851-52, 58854-55, 
    November 22, 1991). Based on these findings, OSM did not approve Utah's 
    revision to its definition of ``road'' and its supplemental policy 
    statement because, when considered together, they would have exempted 
    all public roads from regulation, regardless of their mining-related 
    use (56 FR 58846, 58847-49, November 22, 1991). OSM approved Utah's 
    revision to its definition of ``public road,'' but only in the limited 
    context of the rules in the Utah program for designating lands 
    unsuitable for mining (56 FR 58846, 58849-50, November 22, 1991). OSM 
    also required Utah to make certain amendments to its regulatory 
    definitions of ``road'' and ``public road'' and to withdraw its 
    supplemental policy statement (56 FR 58846, 58857-58, November 22, 
    1992.) These required program amendments are codified at 30 CFR 944.16 
    (n) and (o).
        On January 17, 1992, Utah brought an action in the U.S. District 
    Court for the District of Utah, pursuant to section 526 of SMCRA, for 
    judicial review of the final roads rule (Utah v. Lujan, No. 92-C-063-G 
    (D. Utah)). On September 4, 1992, OSM and Utah resolved Utah v. Lujan 
    by entering into an agreement (the September 4, 1992, agreement). Under 
    the September 4, 1992, agreement, Utah agreed, among other things, to 
    withdraw its claims in Utah v. Lujan, confirm the withdrawal, effective 
    December 5, 1991, from the Utah program of its supplemental policy 
    statement, and to submit to OSM a proposed amendment to the Utah 
    program that would revise the definitions of ``affected area,'' 
    ``road,'' and ``public road'' at Utah Admin. R. 645-100-200 to read the 
    same as the corresponding definitions in the Federal regulations at 30 
    CFR 701.5 and 761.5. For its part, OSM agreed to a blanket exemption of 
    certain Utah mine roads from regulation under SMCRA and the Utah 
    program.
        Pursuant to the September 4, 1992, agreement, Utah filed a motion 
    with the district court to dismiss Utah v. Lujan. However, Utah did not 
    submit the agreement to the court for review or approval. On September 
    24, 1992, the court granted Utah's motion and dismissed the case with 
    prejudice. Also pursuant to the agreement, Utah submitted to OSM the 
    proposed amendment that is the subject of this notice. Subsequently, 
    OSM sent to Utah a letter dated May 19, 1993, invalidating the 
    September 4, 1992, agreement to the extent that it exempted certain 
    mine roads existing on September 4, 1992, from regulation under SMCRA 
    (administrative record No. UT-842).
    
    B. Description of Proposed Amendment
    
        As noted above, Utah proposed to revise its definitions of 
    ``affected area,'' ``road,'' and ``public road'' at Utah Admin. R. 645-
    100-200. Specifically, Utah proposed to revise its definition of 
    ``affected area'' as follows, with the italicized language to be added:
    
        ``Affected area'' means any land or water surface area which is 
    used to facilitate, or is physically altered by, coal mining and 
    reclamation operations. The affected area includes the disturbed 
    area; any area upon which coal mining and reclamation operations are 
    conducted; any adjacent lands the use of which is incidental to coal 
    mining and reclamation operations; all areas covered by new or 
    existing roads used to gain access to, or for hauling coal to or 
    from, coal mining and reclamation operations, except as provided in 
    this definition; any area covered by surface excavations, workings, 
    impoundments, dams, ventilation shafts, entryways, refuse banks, 
    dumps, stockpiles, overburden piles, spoil banks, culm banks, 
    tailings, holes or depressions, repair areas, storage areas, 
    shipping areas; any areas upon which are sited structures, 
    facilities, or other property material on the surface resulting 
    from, or incident to, coal mining and reclamation operations; and 
    the area located above underground workings. The affected area shall 
    include every road used for purposes of access to, or for hauling 
    coal to or from, coal mining and reclamation operations, unless the 
    road (a) was designated as a public road pursuant to the laws of the 
    jurisdiction in which it is located; (b) is maintained with public 
    funds and constructed in a manner similar to other public roads of 
    the same classification within the jurisdiction; and (c) there is 
    substantial (more than incidental) public use. Editorial Note: The 
    definition of Affected area, insofar as it excludes roads which are 
    included in the definition of Surface coal mining operations, was 
    suspended at 51 FR 41960, Nov. 20, 1986. Accordingly, Utah suspends 
    the definition of Affected Area insofar as it excludes roads which 
    are included in the definition of ``coal mining and reclamation 
    operations.''
    
        Utah proposed to revise its definition of ``road'' as follows, with 
    the capitalized language in brackets to be removed and the italicized 
    language to be added:
    
        ``Road'' means a surface right-of-way for purposes of travel by 
    land vehicles used in [COAL EXPLORATION OR] coal mining and 
    reclamation operations or coal exploration. A road consists of the 
    entire area within the right-of-way, including the roadbed, 
    shoulders, parking and side areas, approaches, structures, ditches, 
    and surface. The term includes access and haulroads constructed, 
    used, reconstructed, improved, or maintained for use in [COAL 
    EXPLORATION, OR WITHIN THE AFFECTED AREA OF] coal mining and 
    reclamation operations or coal exploration, including use by coal 
    hauling vehicles [LEADING] to and from transfer, processing, or 
    storage areas. The term does not include [ROADS] ramps and routes of 
    travel within the immediate mining [PIT] area or within spoil or 
    coal mine waste disposal areas.
    
        Finally, Utah proposed to revise its definition of ``public road'' 
    as follows, with the capitalized language in brackets to be removed and 
    the italicized language to be added:
    
        ``Public road'', for the purposes of part R645-103-200, R645-
    301-521.123, and R645-301-521.133 means a road (a) which has been 
    designated as a public road pursuant to the laws of the jurisdiction 
    in which it is located [,]; (b) which is maintained with public 
    funds in a manner similar to other public roads of the same 
    classification within the jurisdiction [, AND]; (c) for which there 
    is substantial (more than incidental) public use; and (d) which 
    meets road classification standards for other public roads of the 
    same classification in the local jurisdiction.
    
    C. Specific Findings
    
        For the following reasons, OSM finds that Utah's proposed amendment 
    to its definitions of ``affected area,'' ``road,'' and ``public road'' 
    at Utah Admin. R. 645-100-200 is in accordance with SMCRA and 
    consistent with the Federal regulations. OSM finds that, except for 
    some differences in wording, Utah's proposed amendment to its 
    definitions of ``affected area,'' ``road,'' and ``public road'' at Utah 
    Admin. R. 645-100-200 is substantively identical to the corresponding 
    Federal definitions of ``affected area'' and ``road'' at 30 CFR 701.5 
    and ``public road'' at 30 CFR 761.5. As discussed below, these 
    differences in wording are necessary to maintain consistency throughout 
    Utah's regulations and make the proposed amendment conform to the Utah 
    program.
    1. Definition of ``Affected Area''
        As noted above, Utah's proposed amendment to its definition of 
    ``affected area'' at Utah Admin. R. 645-100-200 states, in part, as 
    follows:
    
        Editorial Note: The definition of Affected area, insofar as it 
    excludes roads which are included in the definition of Surface coal 
    mining operations, was suspended at 51 FR 41960, Nov. 20, 1986. 
    Accordingly, Utah suspends the definition of Affected Area insofar 
    as it excludes roads which are included in the definition of ``coal 
    mining and reclamation operations.''
    
        In this note, Utah suspended its definition of ``affected area'' 
    insofar as it excluded roads that were included in the definition of 
    ``coal mining and reclamation operations'' at Utah Admin. R. 645-100-
    200. This is consistent with the November 20, 1986, partial suspension 
    of the Federal definition of ``affected area'' (51 FR 41960).
        A difference between Utah's proposed definition of ``affected 
    area'' and its Federal regulatory counterpart is that Utah's proposed 
    definition of ``affected area'' uses the term ``coal mining and 
    reclamation operations, '' while the Federal definition of ``affected 
    area'' uses the term ``surface coal mining and reclamation 
    operations.'' This difference, however, is not substantive. The Utah 
    regulatory term ``coal mining and reclamation operations,'' as defined 
    at Utah Admin. R. 645-100-200, is substantively identical to the 
    Federal regulatory term ``surface coal mining operations,'' as defined 
    at 30 CFR 700.5. In addition, the Utah regulatory term ``coal mining 
    and reclamation operations'' specifically incorporates the term 
    ``surface coal mining and reclamation operations,'' which is defined at 
    Utah Code Annotated (U.C.A.) 40-10-3(17). The Utah statutory definition 
    of ``surface coal mining and reclamation operations'' is substantively 
    identical to the corresponding Federal statutory definition of 
    ``surface coal mining and reclamation operations'' at section 701(27) 
    of SMCRA and the Federal regulatory definition of that term at 30 CFR 
    700.5. Furthermore, the term ``coal mining and reclamation operations'' 
    is used throughout Utah's regulations at Utah Admin. R. 645, which 
    implement the provisions of the Utah Coal Mining and Reclamation Act 
    (the State Act) at Title 40, Chapter 10, of the U.C.A. Thus, the use of 
    the term ``coal mining and reclamation operations'' in Utah's proposed 
    definition of ``affected area'' is both consistent with Utah's 
    regulations at Utah Admin. R. 645 and is consistent with and no less 
    effective than the term ``surface coal mining and reclamation 
    operations,'' as used in the Federal definition of ``affected area.''
        For the reasons stated above, the Director approves Utah's proposed 
    amendment to the term ``affected area'' at Utah Admin. R. 645-100-200.
    2. Definition of ``Road''
        The only difference between Utah's proposed definition of ``road'' 
    at Utah Admin. R. 645-100-200 and the Federal definition of ``road'' at 
    30 CFR 701.5 is that Utah uses the term ``coal mining and reclamation 
    operations'' in its definition, while the Federal definition of 
    ``road'' uses the term ``surface coal mining and reclamation 
    operations.'' As discussed in finding No. III.C.1. above, this 
    difference is not substantive. Thus, Utah's use of the term ``coal 
    mining and reclamation operations'' in its proposed definition of 
    ``road'' is consistent with and no less effective than the Federal 
    definition of ``road.'' In addition, as was discussed in item No. 
    III.A. above, Utah agreed, as part of the September 4, 1992, agreement 
    (provision I.2.a.), to conform the withdrawal of its supplemental 
    policy statement. By letter dated June 10, 1992, Utah notified OSM that 
    the Board of Oil, Gas and Mining did, in fact, withdraw the 
    supplemental policy statement, effective December 5, 1991 
    (administrative record No. UT-771). Accordingly, the Director approves 
    Utah's proposed amendment to the term ``road'' at Utah Admin. R. 645-
    100-200, accepts Utah's withdrawal of the supplemental policy 
    statement, and removes the required amendments codified at 30 CFR 
    944.16(n)(1) and (2).
    3. Definition of ``Public Road''
        Utah's proposed definition of ``public road'' at Utah Admin. R. 
    645-100-200, among other things, adds language that limits the use of 
    this term to the purposes of parts Utah Admin. R. 645-103-200, 645-301-
    521.123, and 645-301-521.133. These parts of the Utah program contain 
    rules for designating lands unsuitable for coal mining and reclamation 
    operations. Thus, Utah's proposed definition of ``public road'' is 
    applicable only to the Utah rules for designating lands unsuitable for 
    such mining. This limitation is consistent with the Federal definition 
    of ``public road'' at 30 CFR 761.5, which applies only in the limited 
    context of areas designated by Act of Congress as being unsuitable for 
    surface coal mining operations (56 FR 58846, 58849, November 22, 1991). 
    Thus, Utah's proposed addition of the above-referenced language to its 
    definition of ``public road'' at Utah Admin. R. 645-100-200 is 
    consistent with and no less effective than the Federal definition of 
    ``public road'' at 30 CFR 761.5. The Director approves Utah's proposed 
    amendment to the term ``public road'' and removes the required 
    amendment at 30 CFR 944.16(o).
    
    IV. Summary and Disposition of Comments
    
    A. Public Comments
    
    1. Support for Utah's Proposed Amendment: Processing of Amendments
        Two commenters said they supported the proposed amendments and 
    encouraged their approval as quickly as possible. The commenters 
    further noted that approval of these definitions, which are identical 
    to the Federal definitions, will remove any ambiguity recognized with 
    respect to Utah's responsibilities to permit roads used primarily for 
    coal mining purposes. In addition, the commenters stated that, 
    according to OSM regulations at 30 CFR 732.17(h)(7), approval of the 
    proposed amendments was required by January 15, 1993, 30 days after the 
    close of the comment period (December 16, 1992), and that in doing so, 
    OSM must, as required by 30 CFR 732.17(h)(10), apply the criteria set 
    forth in 30 CFR 732.15 when determining whether to approve such 
    amendment. Finally, the commenters said that because the proposed 
    amendments are identical to the existing Federal regulations, there 
    should be no question that the amendments should be approved within the 
    mandatory 30-day time period.
        OSM concurs with the commenter's interpretation regarding the 
    above-cited Federal regulations. However, OSM also believes it 
    necessary to provide clarification regarding the applicability of 
    amendment processing procedures and the comment that approval of the 
    proposed amendments was required by January 15, 1993, 30 days after the 
    close of the comment period following publication of the proposed rule 
    notice in the Federal Register.
        Each State program amendment raises different legal and technical 
    issues that require differing levels of analysis. Therefore, unless a 
    proposed amendment is a verbatim copy of the comparable Federal 
    regulation, it may require extensive review and analysis by Federal 
    authorities in consultation with their State counterparts. The process 
    involves review of widely varying amendments that must comport with 
    Federal and State laws and court cases. Rather than simply disapprove a 
    deficient proposal, OSM attempts to work with the State to bring the 
    proposal up to a level where it is comparable to and no less effective 
    than the Federal regulations. This process can be time consuming. Thus, 
    the potential for delays in the process is a constant.
        With respect to Utah's September 17, 1992, proposed amendment, OSM 
    identified deficiencies regarding Utah's definitions of ``affected 
    area,'' ``road,'' and ``public road.'' Accordingly, OSM notified Utah 
    of the deficiencies by an issue letter dated January 21, 1993. The 
    issue letter provided Utah with an opportunity to correct the specified 
    deficiencies. Utah responded to the issue letter in a revised amendment 
    dated March 24, 1993. OSM then announced receipt of the revised 
    proposed amendment in the April 8, 1993, Federal Register (58 FR 
    18187), and, in the same notice, reopened and extended the public 
    comment period for 15 days. The extended comment period closed on April 
    23, 1993. Therefore, according to OSM regulations at 30 CFR 
    732.17(h)(7), approval or disapproval of Utah's proposed amendment was 
    required by May 24, 1993, the first work day 30 days after the close of 
    the extended comment period.
        However, with respect to timely processing of amendments, the 
    general rule is that a statutory or regulatory time period for agency 
    action is not mandatory unless it specifies a consequence for the 
    agency's failure to meet the prescribed deadline. Where no such 
    consequence is specified, the time period is regarded as directory 
    only, intended to guide agency procedures but not to set inflexible 
    requirements. (See, Brock v. Pierce County, 476 U.S. 253, 259, 106 S. 
    Ct. 1834, 1838, 90 L. Ed. 248, 255 (1986); In re Barr Laboratories, 
    Inc., 930 F.2d 72, 74 (D.C. Cir. 1991); and, 1A N. Singer, Sutherland 
    Statutory Construction Sec. 25.03 (5th ed. 1991)).
        In the case of the State program amendment process, the regulation 
    at 30 CFR 732.17(h)(7), which requires OSM to approve or disapprove the 
    proposed amendment within 30 days of the close of the comment period, 
    and the regulation at 30 CFR 732.17(h)(13), which establishes the 6-
    month period for the completion of action on State program amendments, 
    do not impose any consequence in the event OSM fails to meet the 
    deadlines. Thus, these deadlines are directory, rather than mandatory.
    2. Additional Support for Utah's Proposed Amendment
        One commenter, who resides in a rural county in Utah that contains 
    extensive coal reserves, responded with support of Utah's proposed 
    amendment. The commenter further noted that (1) because of the small 
    population base and large geographic parameters of the county, which 
    contains mostly Federal lands, it is important to have Utah's proposed 
    definitions in place in order to develop the local economy and (2) the 
    coal mining industry is a large part of the local economy providing 
    employment for the citizens of the area. OSM acknowledges these 
    comments.
    3. Terms of the September 4, 1992, Agreement
        Several commenters expressed concerns about the September 4, 1992, 
    agreement. That agreement provides in pertinent part as follows:
    
        I. The [Utah] Division [of Oil, Gas and Mining] agrees to:
    * * * * *
        2. In recognition of the direction of the Director of OSM as set 
    forth in OSM's final rule published on November 22, 1991, 56 FR 
    58846 (the final rule):
    * * * * *
        b. Submit a program amendment of the Division's definition of 
    the term ``Road'', to read the same as the corresponding federal 
    definition at 30 CFR 701.5;
        c. Submit a program amendment of the Division's definition of 
    the term ``Public Road'', to read the same as the corresponding 
    federal definition at 30 CFR 761.5 and, in addition, provide that 
    the definition applies only in the context of Utah Admin. R645-103-
    100, et seq., Areas unsuitable for Coal Mining and Reclamation 
    Operations; and
        d. Submit a program amendment of the Division's definition of 
    the term ``Affected Area'' to read the same as the corresponding 
    federal definition at 30 CFR 701.5.
        II. OSM and the Division agree that:
        1. If a road in Utah has not previously been determined to be 
    part of an existing surface coal mining operation, the road will not 
    be required to be included within a permit, based on current federal 
    statute and regulations and the current Utah statute and rules; and
        2. With respect to any application for a permit to conduct 
    surface coal mining and reclamation operations under the Utah Coal 
    Regulatory Program, including any application pending at the time of 
    this agreement, the state will apply the Utah statute and rules 
    existing on the date of permit approval.
    
        One commenter asserted that the Federal regulatory definitions of 
    ``road,'' ``public road,'' and ``affected area,'' and Utah's proposed 
    amendment to its regulatory definitions of those terms, do not clearly 
    define OSM's and Utah's jurisdiction over public roads. The commenter 
    stated that until OSM and Utah clarify their jurisdiction over public 
    roads, they must only impose on operators regulations that conform to 
    the specific terms of the September 4, 1992, agreement. The commenter 
    noted that this agreement requires Utah to submit to OSM a program 
    amendment to Utah's regulatory definitions of ``road,'' ``public 
    road,'' and ``affected area'' that ``reads the same as'' the 
    corresponding Federal regulatory definitions of those terms. In line 
    with this position, the commenter stated that Utah's proposed amendment 
    must be changed because the proposed definitions of ``road,'' ``public 
    road,'' and ``affected area'' use terms, such as ``coal mining and 
    reclamation operations,'' that are not contained in the corresponding 
    Federal regulatory definitions of ``road,'' ``public road,'' and 
    ``affected area.'' Alternatively, the commenter stated that OSM may 
    approve Utah's proposed amendment, but only after OSM formally changes 
    its own regulatory definitions of ``road,'' ``public road,'' and 
    ``affected area'' to use such terms as ``coal mining and reclamation 
    operations.'' Also, the facilitate this position, the commenter stated 
    that OSM's and Utah's regulations must be modified to include the 
    specific terms of the September 4, 1992, agreement. Two additional 
    commenters stated that, in accordance with the September 4, 1992, 
    agreement, all Utah mine roads existing as of that date were 
    ``grandfathered,'' i.e., exempted from regulation. The commenters 
    further said that under that agreement, if a road had not been included 
    within a permitted surface coal mining operation prior to September 4, 
    1992, it will not be incorporated into a permit. The commenters then 
    requested that the Utah program be amended to specifically incorporate 
    this grandfather provision.
        OSM agrees with the comment that the Federal regulatory definitions 
    of ``road,'' ``public road,'' and ``affected area,'' and Utah's 
    proposed amendment to its regulatory definitions of those terms, do 
    not, respectively, clearly define OSM's and Utah's jurisdiction over 
    public roads. Those definitions, however, do not purport, in and of 
    themselves, to define jurisdiction over public roads. In the preamble 
    to the final roads rule, OSM said that it currently relies on the 
    applicable language of the Federal definitions of ``surface coal mining 
    operations'' at section 710(28) of SMCRA and the Federal regulations at 
    30 CFR 700.5, and that Utah must, among other things, also rely on its 
    statutory definition of that term at U.C.A. 40-10-3(18) in determining 
    jurisdiction over public roads (56 FR 58846, 58848-49, November 22, 
    1991). Also, in the final roads rule, as discussed under part III.A. of 
    this notice, OSM found that, when determining whether a public road is 
    subject to regulation under SMCRA and the Utah program, the regulatory 
    authority must consider the extent and effect of the mining-related use 
    of the road (56 FR 58846, 58847-49, 58851-52, 58854-55, November 22, 
    1991). Thus, OSM's and Utah's jurisdiction over public roads is 
    determined, respectively, under the Federal and Utah definitions of 
    ``surface coal mining operations'' and other guidance such as the 
    preamble to the final roads rule.
        OSM disagrees with the comment that the Federal and Utah regulatory 
    definitions of ``road,'' ``public road,'' and ``affected area'' must 
    literally ``read the same.'' Pursuant to 30 CFR 732.15(a), OSM may 
    approve a proposed amendment to a State program if, among other things, 
    the proposed amendment is in accordance with SMCRA and consistent with 
    the Federal regulations implementing SMCRA. OSM interprets paragraphs 
    I.2.b., c., and d. of the September 4, 1992, agreement to only require 
    Utah to submit to OSM a proposed amendment meeting those requirements. 
    For the reasons discussed above under part III of this notice, OSM 
    finds that Utah's proposed amendment meets, upon the stated conditions, 
    the requirements of 30 CFR 732.15(a) and provisions I.2.b., c., and d. 
    of the September 4, 1992, agreement.
        OSM disagrees with the comment that the Federal and Utah 
    regulations must be modified to include the specific terms of the 
    September 4, 1992, agreement. Nothing in SMCRA, the Federal 
    regulations, the Utah program, or the September 4, 1992, agreement 
    requires Utah or OSM to modify their respective regulations to include 
    specific terms of that agreement.
        In addition, OSM notified Utah, by letter dated May 19, 1993, of 
    its determination that paragraph II.1. of the September 4, 1992, 
    agreement, which would have exempted certain Utah mine roads from 
    regulation under SMCRA and the Utah program, is contrary to law and 
    thus is not binding on OSM. The September 4, 1992, agreement was not 
    reviewed, approved, or adopted by the court in Utah v. Lujan. Thus, it 
    is nothing more than a contract between OSM and Utah. Under general 
    contract law, a Federal agency cannot contract with a body it regulates 
    in a manner contrary to its statutory authority or in a manner that 
    does not give full effect to the intent of the Congress (Board of 
    Directors and Officers, Forbes Federal Credit Union v. National Credit 
    Union Admin., 477 F.2d 777, 784 (10th Cir. 1973)). Contracts entered in 
    violation of statutory or regulatory law are unenforceable if 
    enforcement would ``offend the essential purpose of the enactment'' 
    (United States v. Mississippi Valley Co., 364 U.S. 520, 563 (1961). See 
    also Quinn v. Gulf Western Corp., 644 F.2d 89, 93-94 (2d Cir. 1981); 
    D.M. Yates, 74 IBLA 159, 161 (1983). See generally E. Farnsworth, 
    Contracts sections 5.5-5.6 (2d ed. 1982); 15 S. Williston, Contracts 
    section 1763 (3d ed. 1972)). In other words, OSM is free to enter into 
    contracts or agreements with other parties, but when a provision of a 
    contract or agreement conflicts with OSM's statutory responsibilities 
    under SMCRA such that its enforcement would offend an essential purpose 
    of SMCRA, that provision is unenforceable.
        Under paragraph II.1. of the September 4, 1992, agreement, Utah and 
    OSM agreed to a blanket exemption from regulation under SMCRA and the 
    Utah program of all unpermitted mine roads existing prior to September 
    4, 1992. SMCRA jurisdiction over mine roads derives from the statutory 
    definition of the term ``surface coal mining operations'' at section 
    701(28). SMCRA defines this term, in pertinent part, to mean:
    
        (A) Activities conducted on the surface of lands in connection 
    with a surface coal mine * * *; and
        (B) the areas upon which such activities occur or where such 
    activities disturb the natural land surface. Such areas shall also 
    include * * * all lands affected by the construction of new roads to 
    gain access to the site of those activities and for haulage * * *
    
    (emphasis added). This definition of ``surface coal mining operations'' 
    is substantively identical to the Federal regulatory definition of that 
    term at 30 CFR 700.5 and Utah's statutory definition of that term at 
    U.C.A. 40-10-3(18).
        Under those definitions, OSM and Utah are required to regulate 
    certain mine roads, based, in part, on the extent and effect of mining-
    related use of the road (see 56 FR at 58847-49 (1991); 55 FR 13773, 
    13775 (1990); 53 FR 54190, 54192 (1988)). Nothing in SMCRA or the Utah 
    program provides for a blanket exemption of mine roads from regulation. 
    To the contrary, jurisdiction over mine roads must be made on a case-
    by-case basis (see 56 FR at 58848 (1991); 55 FR 13773, 13775 (1990); 53 
    FR 54190, 54193 (1988)).
        By granting a blanket exemption to existing, unpermitted mine roads 
    without any consideration given to the amount of their mining-related 
    use, paragraph II.1. of the September 4, 1992, agreement would have 
    exempted roads which, under SMCRA and the Utah program, OSM and Utah 
    are required to regulate. Thus, paragraph II.1. is contrary to SMCRA 
    and the Utah program.
        Moreover, the enforcement of paragraph II.1. of the September 4, 
    1992, agreement offends an essential purpose of SMCRA and the Utah 
    program (See Mississippi Valley, 364 U.S. at 563). One of SMCRA's 
    essential purposes is ``to protect the environment and ensure the 
    reclamation of mined areas'' (Daniel Brothers Coal Co., 2 IBSMA 45, 49 
    (1980); see also section 102(a) of SMCRA). Also, as U.C.A. 40-10-2(3) 
    indicates, one of the purposes of the Utah program is to ``[a]ssure 
    that surface coal mining operations are conducted so as to protect the 
    environment.'' Given the significant environmental harm that can result 
    from unregulated mine access and haul roads, these statutory purposes 
    cannot be fully met by an agreement, such as paragraph II.1., to grant 
    an unauthorized regulatory exemption.
        For the reasons given above, paragraph II.1. of the September 4, 
    1992, agreement is contrary to SMCRA and the Utah program, and because 
    its enforcement would offend an essential purpose of these laws it is 
    unenforceable. Accordingly, paragraph II.1. must not be applied by OSM 
    or Utah to any permitting or enforcement decisions in Utah.
        Under paragraph II.2. of the September 4, 1992, agreement, Utah 
    agreed to ``apply the Utah statute and rules existing on the date of 
    permit approval'' to any permit applications pending on September 4, 
    1992, and to any future permit applications. In the aforementioned 
    letter to Utah dated May 19, 1993, OSM stated that this provision is 
    valid as long as (1) the phrase ``Utah statutes and rules'' is 
    interpreted to mean the approved Utah State program; (2) any 
    application of the Utah statute and rules to a permitting decision is 
    consistent with the Department of the Interior's actions in approving 
    or not approving such statutes and rules (see, e.g., 56 FR 58846, 
    November 22, 1991); and (3) the provision is not interpreted to prevent 
    Utah or OSM from taking action subsequent to permit approval, where 
    appropriate under the approved program (e.g., requiring a permit 
    revision to reflect changes in applicable law).
        For these reasons, the Federal regulations and the Utah program 
    must not be modified to include the specific terms of paragraphs II.1. 
    and II.2. of the September 4, 1992, agreement.
    4. Basis for Submission of Utah's Proposed Amendment and the Effect of 
    OSM's Invalidation of Provision II.1. of the September 4, 1992, 
    Agreement on Utah's Proposed Amendment
        One commenter stated that OSM's May 19, 1993, letter, which 
    notified Utah that a portion of the September 4, 1993, agreement 
    between Utah and OSM was contrary to law and therefore not binding on 
    OSM, constitutes an abrupt reversal of position and abdication of the 
    agreement that forms the basis for the amendment addressed in this 
    notice. Notwithstanding OSM's action on the agreement, the commenter 
    requested that OSM approve the amendment.
        OSM disagrees with the commenter's inference that the agreement was 
    the sole reason that Utah submitted the amendment to OSM. When OSM and 
    Utah drafted the agreement, they ensured that the required amendments 
    of the Director's decision in the November 22, 1991, Federal Register 
    would be satisfied by Utah complying with provisions I.2. b., c., and 
    d. of the agreement. Therefore, when Utah submitted proposed 
    definitions of ``road,'' ``public road,'' and ``affected area,'' it did 
    so not only in accordance with provisions I.2. b., c., and d. of the 
    agreement, but also in response to required program amendments at 30 
    CFR 944.16 (n) and (o) that OSM placed on the Utah program in the 
    November 22, 1991, notice. Had OSM and Utah not entered into the 
    agreement, Utah still would have had to submit proposed definitions to 
    satisfy the required amendments at 30 CFR 944.16 (n) and (o).
        OSM also disagrees with the commenter's assertion that OSM's 
    approval of the amendment would be inconsistent with OSM's notification 
    to Utah that a part of the agreement was contrary to law and not 
    binding on OSM. The agreement consisted of two parts. The first part 
    (provision I) addressed actions by Utah (1) to withdraw with prejudice 
    its lawsuit on certain roads violations that OSM issued in Utah 
    (provision I.1.) and (2) to withdraw a policy statement and revise its 
    definitions of ``road,'' ``public road,'' and ``affected area'' in a 
    manner consistent with the corresponding Federal definitions at 30 CFR 
    701.5 and 761.5 (provisions I.2. a., b., c., and d.). The second part 
    (provision II.) addressed the implementation of the Federal and State 
    statutes and regulations with respect to (1) existing roads that were 
    not, as of September 4, 1992, previously determined to be part of an 
    existing surface coal mining operation and required to be permitted 
    (provision II.1.) and (2) permit applications pending Utah's approval 
    or disapproval as of September 4, 1992 (provision II.2.). While OSM by 
    its May 19, 1993, letter notified Utah that provision II.1. of the 
    September 4, 1993, agreement between Utah and OSM was not binding on 
    OSM, provisions I.1., I.2. a., b., c., and d., and II.2. remained in 
    effect. Therefore, contrary to the commenter's statement, OSM could 
    approve the amendment as long as Utah's proposed definitions of 
    ``road,'' ``public road,'' and ``affected area,'' which are the subject 
    of provisions I.2. a., b., c., and d., of the agreement, were not 
    inconsistent with the corresponding Federal definitions at 30 CFR 701.5 
    and 761.5.
        In addition, the commenter raised several arguments concerning the 
    legal validity of the reasons OSM set forth in its May 19, 1993, 
    notification to Utah that provision II.1. of the September 4, 1993, 
    agreement between Utah and OSM was contrary to law and therefore not 
    binding on OSM. The Director notes these arguments but does not respond 
    to them because they are outside the scope of this rulemaking to the 
    extent that Utah did not submit in this amendment proposed rules 
    incorporating provision II.1. of the agreement.
    5. Jurisdiction
        Two commenters expressed concerns that Utah's proposed definitions 
    of ``road,'' ``public road,'' and ``affected area,'' would 
    inappropriately broaden the State's jurisdiction under the State Act to 
    regulate ``public roads'' that service coal mining operations, coal 
    exploration activities, and most haulage. The commenters noted that the 
    term ``public road'' would no longer be applied in determining areas 
    that should be permitted under the State Act since that term, as 
    proposed, would be limited to defining areas unsuitable for mining. The 
    commenters stated that, accordingly, the definition of ``public road,'' 
    which includes criterion (d) indicating that a public road must meet 
    construction standards for other public roads of the same 
    classification in the local jurisdiction, will no longer be applied in 
    determining whether or not a road should be permitted under the State 
    Act.
        OSM disagrees with the comment that Utah's proposed definitions 
    will inappropriately broaden the State's jurisdiction under the State 
    Act to regulate ``public roads.'' As discussed above under part III.A. 
    of this notice, on February 25, 1991, Utah adopted certain revisions to 
    its definitions of ``road'' and ``public road'' at Utah Admin. R. 645-
    100-200, along with a supplemental policy statement that, considered 
    together, would exempt all public roads from regulation under the Utah 
    program. That adoption by Utah, however, did not take effect because it 
    was never approved by OSM, as required by 30 CFR 732.17(g). Thus, the 
    term ``public road,'' as adopted by Utah on February 25, 1991, was 
    never effective as a matter of law. Consequently, Utah's proposed 
    amendment does not serve to broaden its jurisdiction to regulate a 
    ``public road.'' In addition, and more importantly, even if Utah's 
    proposed definition of ``public road'' is mistakenly interpreted as 
    broadening jurisdiction, it is not inappropriate since it is no less 
    effective than the corresponding Federal definition of ``public road.''
    6. Public Roads and the Phrase ``Substantial (More Than Incidental)'' 
    Public Use
        Two commenters stated that Utah's proposed definition of the term 
    ``affected area'' appears to exclude public roads and requested that 
    Utah further defined the phrase ``substantial (more than incidental)'' 
    public use, as used in the definition of ``affected area.'' In 
    addition, one of the commenters said the definition of ``affected 
    area'' should be clarified to state a percentage of vehicle traffic 
    other than mining that would constitute public use.
        OSM acknowledges the comment that Utah's proposed definition of 
    ``affected area'' appears to exclude public roads. However, as 
    discussed above under part III.C.1. of this notice, the editorial note 
    in Utah's proposed definition of ``affected area'' has the effect of 
    including in the ``affected area'' all roads that are included in the 
    definition of ``coal mining and reclamation operations.''
        OSM disagrees with the comments that Utah further define the phrase 
    ``substantial (more than incidental)'' public use and that Utah provide 
    a percentage of vehicle traffic other than mining that would constitute 
    public use. In the preamble to a final rule establishing performance 
    standards for roads associated with surface coal mining operations, OSM 
    said that:
    
        State laws vary widely in their road classification systems. 
    OSMRE [OSM] is concerned that roads constructed to serve mining 
    operations not avoid compliance with the performance standards by 
    being deeded to public entities. However, it is not OSMRE's 
    intention automatically to extend jurisdiction over roads into the 
    existing public road network. Jurisdiction under the Act [SMCRA] and 
    applicability of the performance standards are best determined on a 
    case-by-case basis by the regulatory authority.
    
    (53 FR 45190, 45193, November 8, 1988). Thus, a case-by-case approach 
    is necessary in determining the applicability of the Utah program to 
    public roads. Utah's proposed amendment, as discussed under part 
    IV.A.3. of this notice, provides guidance that is no less effective 
    than that specified in the Federal definition of ``surface coal mining 
    operations'' at 30 CFR 700.5 regarding which public roads are subject 
    to Utah's jurisdiction.
        Another commenter suggested that the Utah term ``public road'' 
    additionally include roads to which the public has access. As indicated 
    in finding No. III.C.3., Utah adds language that limits the use of this 
    term to parts R645-103-200, R645-301-521.123, and R645-301-521.133 of 
    Utah's rules, which pertain only to designating lands unsuitable for 
    coal mining and reclamation operations. While OSM appreciates the 
    commenter's suggestion, it cannot require Utah to amend its definition 
    further because the proposed definition has been determined to be no 
    less effective than the corresponding Federal definition.
    7. Definition of ``Road''
        Two commenters stated that Utah's proposed definition of the term 
    ``road'' is so broad that it includes almost any road that carries coal 
    in intrastate and interstate commerce, and should be amended to clarify 
    that the term ``road'' does not include ``public roads'' or roads 
    excluded under the term ``affected area.''
        OSM disagrees with these comments. Utah's proposed definition of 
    the term ``road'' is substantively identical to the Federal regulatory 
    definition of that term at 30 CFR 701.5. Both of those definitions of 
    ``road'' are clear on their respective terms as to which roads are to 
    be regulated as surface coal mining operations. The determination as to 
    whether a particular road will be regulated as part of a surface coal 
    mining operation must be made on a case-by-case basis by the regulatory 
    authority, and must be based upon the mining-related use of the road 
    (53 FR 45190, 45192, November 8, 1988; 56 FR 58846, 58848-9, November 
    22, 1991).
    8. Application of Mining-Related Use of Roads as Criteria To Determine 
    Whether a Road Is Subject to SMCRA Permitting Requirements
        A commenter stated that OSM's application of the extent and effect 
    of the mining-related use of roads as criteria in determining whether a 
    road is subject to SMCRA permitting requirements is contrary to OSM's 
    announced deference to State decision making, whereby States with 
    primacy should be allowed to determine, on a case-by-case basis, which 
    roads must be included within the permit area. Specifically the 
    commenter asserted that nothing in SMCRA or the Federal regulations 
    grants OSM the authority to make case-by-case determinations in primacy 
    States of which roads must be included within a permit area. The 
    commenter next stated that OSM has no standards in place that define 
    the point at which mining-related use requires the inclusion of a road 
    within a permit area. The commenter further stated that there are no 
    Federal standards defining what constitutes a de minimus use of a road. 
    Instead, OSM has allowed States to determine the point at which 
    jurisdiction begins and ends through individual State permitting 
    decisions. Thus, the commenter concluded that the Federal regulatory 
    definition of ``affected area'' no longer provides relevant guidance in 
    light of OSM's deference to State decision making.
        With respect to the first comment that OSM relies on the extent and 
    effect of the mining-related use of roads as criteria in determining 
    whether a road is subject to SMCRA permitting requirements, OSM wishes 
    to emphasize that the regulation of public roads as part of a surface 
    coal mining operation is not solely dependent upon the use of a road. 
    Factors such as the purpose and time of its construction, the extent to 
    which the road is directly part of a surface coal minng operation, the 
    degree to which the road is altered to accommodate mining operations, 
    and the impact of mining operations on the road and its surrounding 
    environment may be major considerations in determining whether a road 
    is subject to regulation under SMCRA. In addition, under the Federal 
    definition of ``surface coal mining operations'' at 30 CFR 700.5, a 
    road may be subject to regulation under SMCRA notwithstanding the lack 
    of demonstrable impacts associated with its mining-related 
    construction, maintenance, and use. Therefore, even in the absence of 
    such evidence, it may be appropriate to regulate a road in order to 
    ensure, through the SMCRA permitting, inspection, and enforcement 
    processes, that the purposes of SMCRA are achieved (56 FR 58846, 58852, 
    November 22, 1991).
        With respect to the comments regarding the lack of Federal 
    standards for determining when mining-related use requires the 
    inclusion of a road within the permit area, the definitions of 
    ``affected area'' and ``surface coal mining and reclamation 
    operations'' provide guidance in these instances.
        OSM has modified its regulations in accordance with court decisions 
    to provide guidance to States and other interested parties for 
    determining when roads will be regulated as part of a surface coal 
    mining operation. OSM, pursuant to court order in In re Permanent 
    Surface Mining Regulation Litigation (In re Permanent), 620 F. Supp. 
    1519, 1581-82 (D.D.C. 1985), modified sub. nom., National Wildlife 
    Federation v. Hodel, 839 F.2d 694 (DC Cir. 1988), modified its 
    interpretation of the extent to which SMCRA applied to public roads. 
    Specifically, OSM suspended the Federal regulatory definition of 
    ``affected area'' to the extent that it excluded public roads that are 
    included in the Federal regulatory definition of ``surface coal mining 
    operations'' (51 FR 41952, November 20, 1986). OSM stated that ``[t]he 
    suspension will have the effect of including in the `affected area' all 
    lands affected by the construction of new roads or the improvement or 
    use of existing roads to gain access to the site of the regulated 
    activities or for haulage'' (51 FR 41952, 41953, emphasis added).
        In determining which mining-related roads are subject to 
    regulation, OSM currently relies on the applicable language of the 
    Federal definitions of ``surface coal mining operations'' at section 
    701(28) of SMCRA and 30 CFR 700.5. This may require, in appropriate 
    circumstances, that OSM and State regulatory authorities issue, and 
    surface coal mine operators obtain, permits for certain public roads 
    (56 FR 58846, 58848, November 22,1991).
        With respect to the comment on the scope of OSM's oversight 
    authority in primacy States to review the States' case-by-case 
    determinations on roads, OSM will not respond here. This issue is 
    pertinent to Utah's implementation of its statute and rules and OSM's 
    oversight of Utah's actions in accordance with section 201 of SMCRA, 
    but is not pertinent to this State program amendment.
    9. Proper Interpretation of ``Affected Area''
        A commenter asserted that OSM has failed to consider the extent to 
    which a broad interpretation of the term ``affected area'' may conflict 
    with other regulations that define which public roads are entitled to 
    environmental protection. As an example, the commenter cited section 
    522(e)(4) of SMCRA, which states that no surface coal mining operations 
    shall be permitted within 100 feet of the outside right-of-way line of 
    any public road, and the definition of ``public road'' at 30 CFR 761.5, 
    which implements section 522(e)(4) of SMCRA and lists the following 
    criteria a road must meet in order to qualify as a public road: the 
    road has been designated as a public road by the State or local law, it 
    is maintained with public funds, there is substantial, or more than 
    incidental, public use, and the road meets applicable road construction 
    standards. The commenter continued that OSM should not apply one 
    definition of ``public road'' for the purpose of implementing the SMCRA 
    section 522(e) prohibitions and another definition for determining 
    whether a road falls within the scope of ``surface coal mining 
    operations'' subject to permitting requirements. The commenter 
    concluded that OSM should avoid construing the definition of ``affected 
    area'' in a manner that would conflict with other statutory and 
    regulatory requirements.
        OSM does not agree with these comments. As discussed below, OSM is 
    constrained by the court's decision in In re Permanent in how it 
    regulates roads.
        The Federal definition of ``affected area'' once included a 
    ``substantial (more than incidental) public use'' criterion, as the 
    current definition of ``public roads'' also does. However, paragraph 
    (c) of the Federal definition of ``affected area'' at 30 CFR 701.5, in 
    which OSM previously interpreted the term ``affected area'' as not 
    applying to roads for which `'there is substantial (more than 
    incidental) public use,'' was successfully challenged in In re 
    Permanent. As a result, and as stated above in response to comment 
    IV.A.8., OSM modified its interpretation of the extent to which SMCRA 
    applied to public roads and suspended the definition of ``affected 
    area'' ``to the extent that it excludes public roads that are included 
    in the definition of ``surface coal mining operations'' (51 FR 41952, 
    41953, November 20, 1986). The Federal definition of ``public road'' at 
    30 CFR 761.5 was not challenged and the ``substantial (more than 
    incidental) public use'' criterion in that definition remains in force 
    in the context of lands unsuitable for mining.
        The commenter addressed the editorial note that Utah proposes for 
    the definition of ``affected area.'' This note indicates that a portion 
    of the definition is suspended insofar as it excludes roads that are 
    included in the definition of ``coal mining and reclamation 
    operations'' at Utah Admin. R. 645-100-200. The commenter stated that 
    this clarification is not necessary because the State's proposed 
    definition of ``affected area'' clearly delineates the regulatory 
    authority's jurisdiction.
        OSM disagrees with this comment. As finding No. III.C.1. indicates, 
    Utah's proposed definition of ``affected area'' and accompanying 
    editorial note are, with only a few nonsubstantive differences, 
    verbatim copies of the Federal definition of ``affected area'' and 
    accompanying editorial note. As discussed above, the editorial note 
    accompanying the Federal definition is necessary to bring the 
    definition into compliance with the court decision In re Permanent. The 
    same is also the case with the State definition. Without the editorial 
    note or other equivalent revision to Utah's rules, the Utah program 
    would not be consistent with the Federal regulations that were revised 
    in response to the court decision.
    
    B. Agency Comments
    
        Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on 
    Utah's proposed amendment from the Administrator of the U.S. 
    Environmental Protection Agency (EPA), the Secretary of the U.S. 
    Department of Agriculture, and the heads of other Federal agencies with 
    an actual or potential interest in the Utah program.
        By letter dated January 21, 1993, the U.S. Forest Service (USFS) 
    commented that forest development roads (FDR'S) are not public roads 
    (23 U.S.C. 101(a)) in the same sense as roads that are under the 
    jurisdiction of public agencies, such as States or counties 
    (administrative record No. UT-821) and are not intended to meet the 
    transportation needs of the public at large. Instead, they are 
    authorized only for the administration and utilization of National 
    Forest System lands. Although FDR's are generally open and available 
    for public use, that use is at the discretion of the Secretary of 
    Agriculture. Through authorities delegated by the Secretary, USFS may 
    restrict or control use to meet specific management direction. 
    Commercial users, permittees, or contractors also may be required to 
    share in the cost of developing, improving, and maintaining FDR's.
        USFS also stated that it may regulate use and restrict public 
    travel on FDR's regardless of whether there is substantial or 
    incidental use. The USFS added that sometimes there are FDR's with 
    seasonal adjusted daily traffic of less than 10 vehicles per day ``open 
    to public travel'' when these roads serve large blocks of Forest lands, 
    serve important resources, or are the only access routes within the 
    block of land.
        USFS recommended that because it has the legal right to control or 
    regulate FDR's, Utah Admin. R. 645-301-200 (defining ``public road'') 
    should be modified to (1) include FDR's with those roads that have been 
    designated public roads pursuant to the jurisdiction in which it is 
    located and (2) exclude FDR's from the use restriction that there be 
    substantial (more than incidental) public use of a road in order for it 
    to qualify as a public road. USFS stated that with these recommended 
    changes, it could concur with the formal amendment.
        By a second letter dated September 9, 1993 (administrative record 
    No. UT-870), USFS restated its concern regarding rules that attempt to 
    dictate standards of development or maintenance relating to roads under 
    the jurisdiction of public road agencies or Federal agencies providing 
    public access to lands of the United States. USFS further stated that
    
        SMCRA regulations must be limited to restrictions on coal 
    hauling activities rather than orders to reclaim or otherwise modify 
    the transportation facility. The proposed amendment does not clarify 
    this issue sufficiently to present [sic] unilateral decisions by OSM 
    and DOGM [(the Division)] on roads managed for public access.
    
        OSM appreciates USFS's concerns as stated in its January 21, 19923, 
    and September 9, 1993, letters. OSM cannot, however, require the State 
    to adopt the recommended changes to the proposed definition of ``public 
    road'' at Utah Admin, R. 645-301-200 because the proposed definition is 
    substantively identical to the Federal definition at 30 CFR 761.5 and 
    is, therefore, no less effective than the corresponding Federal 
    definition.
        Further, as explained below, the existing Federal definition and 
    proposed State definition of ``public road,'' will not interfere with 
    USFS jurisdiction over FDR's and will protect FDR's from the adverse 
    effects of surface mining to the extent allowed under SMCRA and the 
    State Act.
        The term ``public road'' is defined at 30 CFR 761.5 and at proposed 
    Utah Admin. R. 645-301-200 so that it may be used in determining when a 
    surface coal mining operation may be conducted within 100 feet of a 
    road:
    
        [No surface coal mining operations shall be conducted] within 
    100 feet, measured horizontally, of the outside right-of-way line of 
    any public road * * *
    
    (30 CFR 761.11(d) and Utah Admin. R. 645-103-234, emphasis added).
        In order to be considered a ``public road,'' a road must be one
    
        (a) Which has been designated as a public road pursuant to the 
    laws of the jurisdiction in which it is located;
        (b) Which is maintained with public funds in a manner similar to 
    other public roads of the same classification within the 
    jurisdiction;
        (c) For which there is substantial (more than incidental) public 
    use; and
        (d) Which meets road construction standards for other public 
    roads of the same classification in the local jurisdiction.
    
    (30 CFR 761.5 and proposed Utah Admin. R. 645-301-200).
        In its comments, USFS implies that, although FDR's may not meet, in 
    certain instances, the requirements of ``public designation'' and 
    ``substantial public use'' in subsections (a) and (c) above, FDR's 
    should be treated as ``public roads'' for purposes of determining when 
    a surface coal mining operation may be conducted within 100 feet of a 
    road. As explained below, when appropriate, FDR's will constitute 
    ``public roads'' under the existing Federal and proposed State 
    language. Changes to specifically add FDR's to these regulations are 
    thus unnecessary.
        The phrase, ``which has been designated as a public road pursuant 
    to the laws of the jurisdiction in which it is located,'' under 
    subsection (a) of the definition of ``public road,'' is interpreted by 
    OSM to include USFS jurisdiction over FDR's. Therefore, FDR's that USFS 
    designates as ``public'' meet the ``designation'' requirement of the 
    definition. There is no need to add specific language concerning FDR's 
    to this requirement of the definition.
        As for the ``public use'' requirement of the definition, if an FDR, 
    like any other road, receives substantial public use, the FDR will 
    satisfy this requirement of the definition.
        USFS, from its comments of September 9, 1993, also appears 
    concerned that OSM's and Utah's definitions of ``public road'' will 
    improperly allow OSM's and Utah's regulatory authority to extend to the 
    ``development'' and ``maintenance'' of FDR's. USFS further asserts that 
    ``SMCRA regulations must be limited to restrictions on coal hauling 
    activities rather than orders to reclaim or otherwise modify the 
    transportation facility.'' Again, these concerns are addressed by the 
    existing Federal and proposed State regulations.
        With respect the USFS's first concern, except for a road that is 
    part of a surface coal mining operation, neither OSM nor Utah has the 
    authority to regulate the ``development'' or ``maintenance'' of a road 
    located on USFS lands. Moreover, the Federal and State ``public road'' 
    definition, rather than providing such authority, actually provides 
    FDR's with protection from the adverse effects of surface coal mining 
    operations by prohibiting surface coal mining operations from being 
    conducted within 100 feet of any FDR that constitutes of ``public 
    road.'' Finally, it should be noted that surface coal mining operations 
    may be conducted on USFS lands only if the operation in question meets 
    the stringent land conservation requirements of 30 CFR 761.11(b), which 
    include the power of the Secretary of Agriculture, in certain 
    circumstances, to prohibit such mining.
        With respect to USFS's second concern, even if OSM desired to limit 
    its regulatory power to only coal hauling activities, rather than to 
    the transportation facility itself, it could not do so. OSM is required 
    by section 515(b)(17) of SMCRA (30 U.S.C. 1265(b)(17)) to regulate the 
    construction, maintenance, and reclamation of roads used in connection 
    with a surface coal mining operation. Such regulation, should it extend 
    to FDR's, is not a usurping of USFS's authority to control roads under 
    its jurisdiction, but it rather OSM fulfilling its mandate, under 
    SMCRA, to ensure that lands disturbed by surface coal mining operations 
    are not permanently damaged.
        Therefore, on the basis of the above discussion, OSM does not 
    required Utah to amend its program in response to USFS's comments.
        By letters dated October 29, 1992, and August 16, 1993, the Army 
    Corps of Engineers responded that the proposed changes to the Utah 
    program were satisfactory to that agency (administrative record Nos. 
    UT-796 and UT-859).
        By letter dated November 2, 1992, the Bureau of Land Management 
    said that it had no concerns regarding the proposed amendment 
    (administrative record No. UT-797).
        By letter dated October 22, 1992, the U.S. Bureau of Mines (BOM) 
    said that it had no comments in response to the proposed amendment 
    (administrative record No. UT-793). By additional letters dated April 
    12 and August 10, 1993, BOM responded that because the revised 
    definitions of the terms ``affected area,'' ``road,'' and ``public 
    road'' do not affect the production of mineral resources other than 
    coal, it had no comment (administrative record Nos. UT-831 and UT-854).
        By letters dated October 23, 1992, and May 3 and August 12, 1993, 
    the U.S. Fish and Wildlife Service (USFWS) said that it found nothing 
    of significant concern and had no comments on the proposed amendment 
    (administrative record Nos. UT-795, 838, and 856).
        By letters dated January 14, May 12, and August 18, 1993, the Mine 
    Safety and Health Administration (MSHA) stated that the proposed 
    amendment did not conflict with current MSHA regulations 
    (administrative record Nos. UT-818, UT-841, and UT-860).
        By letters dated June 10 and August 11, 1993, the Environmental 
    Protection Agency (EPA) responded that it had no comments on the 
    proposed amendment (administrative record Nos. UT-844 and UT-855).
        By letter dated April 14, 1993, the Soil Conservation Service (SCS) 
    commented that, with respect to Utah's proposed definition of the term 
    ``road,'' ``hydrologic and erosion control measures'' need to be 
    included as part of the road as described in the second sentence of the 
    definition. SCS further stated that this addition is needed because 
    such measures may be needed to mitigate the effects of drainage areas 
    and watersheds of road construction and use (administrative record No. 
    UT-832).
        In response, OSM has found in finding No. III.C.2. that Utah's 
    proposed definition of the term ``road'' is substantively identical to 
    the Federal regulatory definition of ``road'' at 30 CFR 701.5. In 
    addition, Utah's rules at Utah Admin. R. 645-301-752.200, .210, .220, 
    and .250 set performance standards for primary and ancillary roads that 
    include hydrologic measures that are no less effective than the 
    corresponding Federal regulations at 30 CFR 816.150(b)(1), (3), and (5) 
    and 817.150(b)(1), (3), and (5). These State rules read as follows:
    
    
        752.200. Road Drainage. Roads will be located, designed, 
    constructed, reconstructed, used, maintained, and reclaimed in 
    according to R645-301-732.400, R645-301-742-400 and R645-301-762 and 
    to achieve the following:
        R645-301-752.210. Control or prevent erosion, siltation, and the 
    air pollution attendant to erosion by vegetating or otherwise 
    stabilizing all exposed surfaces in accordance with current, prudent 
    engineering practices;
        R645-301-752.220. Control or prevent additional contributions of 
    suspended solids to stream flow or runoff outside the permit area;
    * * * * *
        R645-301-752.250. Refrain from significantly altering the normal 
    flow of water in streambeds or drainage channels.
    
    
        Therefore, although Utah's proposed definition of ``road'' at Utah 
    Admin. R. 645-100-200 does not include SCS's recommended term 
    ``hydrologic and erosion control measures,'' the aforementioned State 
    rules do include performance standards that mitigate the effects on 
    drainage areas and watersheds of road construction and use them in a 
    manner no less effective than the corresponding Federal regulations. On 
    this basis, OSM cannot require Utah to revise its program in response 
    to SCS's comment.
    
    C. State Historic Preservation Officer (SHPO) and the Advisory Council 
    on Historic Preservation (ACHP)
    
        Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit 
    comments from the SHPO and ACHP for all amendments that may have an 
    effect on historic properties. By letters dated October 16, 1992, and 
    March 31, 1993, OSM solicited comments from these offices 
    (administrative record Nos. UT-791 and UT-828). Neither the SHPO nor 
    the ACHP commented on the proposed amendment.
    
    D. U.S. Environmental Protection Agency (EPA) Concurrence
    
        Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
    written concurrence of the Administrator of EPA with respect to those 
    aspects of a State 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.) and the Clean Air Act, as amended, (42 
    U.S.C. 7401 et seq.). EPA gave its written concurrence with the 
    proposed amendment by letter dated February 17, 1993 (administrative 
    record No. UT-826).
    
    V. Director's Decision
    
        Based on the above findings, the Director approves Utah's proposed 
    amendment as submitted on September 17, 1992, and revised on March 24, 
    1993. As discussed in finding No. III.C.1., the Director approves 
    Utah's proposed amendment to the term ``affected area.'' As discussed 
    in finding No. III.C.2., the Director approves Utah's proposed 
    amendment to the term ``road,'' accepts Utah's withdrawal of the 
    supplemental policy statement, and removes the required program 
    amendments codified at 30 CFR 944.16(n) (1) and (2). As discussed in 
    finding No. III.C.3., the Director approves Utah's proposed amendment 
    to the term ``public road'' and removes the required program amendment 
    at 30 CFR 944.16(o). The Director is approving these proposed rules 
    with the provision that they be fully promulgated in identical form to 
    the rules submitted to and reviewed by OSM and the public.
        In accordance with 30 CFR 732.17(f)(1), the Director is also taking 
    this opportunity to clarify in the required amendment section at 30 CFR 
    944.16 that, within 60 days of the publishing of this notice, Utah 
    would have to either submit a proposed written amendment, or a 
    description of an amendment to be proposed that meets the requirements 
    of SMCRA and 30 CFR chapter VII and a timetable for enactment that is 
    consistent with Utah's established administrative or legislative 
    procedures.
        The Federal regulations at 30 CFR part 944, which codify decisions 
    concerning the Utah program, are being amended to implement this 
    decision. This final rule is being made effective immediately to 
    expedite the State program amendment process and to encourage States to 
    bring their programs into conformity with the Federal standards without 
    undue delay. Consistency of State and Federal standards is required by 
    SMCRA.
    
    VI. Procedural Determinations
    
    A. Executive Order 12866
    
        This final rule is exempted from review by the Office of Management 
    and Budget under Executive Order 12866 (Regulatory Planning and 
    Review).
    
    B. Executive Order 12778
    
        The Department of the Interior has conducted the reviews required 
    by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
    determined that this rule meets the applicable standards of subsections 
    (a) and (b) of that section. However, these standards are not 
    applicable to the actual language of State regulatory programs and 
    program amendments since each such program is drafted and promulgated 
    by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
    (30 U.S.C. 1253 and 12550) and the Federal regulations at 30 CFR 
    730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
    regulatory programs and program amendments submitted by the States must 
    be based solely on a determination of whether the submittal is 
    consistent with SMCRA and its implementing Federal regulations and 
    whether the other requirements of 30 CFR parts 730, 731, and 732 have 
    been met.
    
    C. National Environmental Policy Act
    
        No environmental impact statement is required for this rule since 
    section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
    decisions on proposed State regulatory program provisions do not 
    constitute major Federal actions within the meaning of section 
    102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 
    4332(2)(C)).
    
    D. 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.).
    
    E. 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 would have a 
    significant economic impact, the Department relied upon the data and 
    assumptions for the counterpart Federal regulations.
    
    List of Subjects in 30 CFR 944
    
        Intergovernmental relations, Surface mining, Underground mining.
    
        Dated: March 31, 1994.
    Raymond L. Lowrie,
    Assistant Director, Western Support 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 (x) to read as 
    follows:
    
    
    Sec. 944.15  Approval of amendments to State regulatory program.
    
    * * * * *
        (x) Revisions to Utah's definitions of ``affected area,'' ``road,'' 
    and ``public road'' at Utah Admin. R. 645-100-200, as submitted to OSM 
    on September 17, 1992, and as subsequently revised on March 24, 1993, 
    as well as Utah's December 5, 1991, withdrawal of its supplemental 
    policy statement, are approved effective April 7, 1994.
        3. Section 944.16 is revised to read as follows:
    
    
    Sec. 944.16  Required program amendments.
    
        Pursuant to 30 CFR 732.17(f)(1), Utah is required to submit to OSM 
    by the specified date the following written, proposed program 
    amendment, or a description of an amendment to be proposed that meets 
    the requirements of SMCRA and 30 CFR chapter VII and a timetable for 
    enactment that is consistent with Utah's established administrative or 
    legislative procedures.
        (a) [Reserved]
        (b) [Reserved]
    
    [FR Doc. 94-8320 Filed 4-6-94; 8:45 am]
    BILLING CODE 4310-05-M
    
    
    

Document Information

Published:
04/07/1994
Department:
Surface Mining Reclamation and Enforcement Office
Entry Type:
Uncategorized Document
Action:
Final rule; approval of proposed amendment.
Document Number:
94-8320
Dates:
April 7, 1994.
Pages:
0-0 (1 pages)
Docket Numbers:
Federal Register: April 7, 1994
CFR: (2)
30 CFR 944.15
30 CFR 944.16