[Federal Register Volume 60, Number 84 (Tuesday, May 2, 1995)]
[Rules and Regulations]
[Pages 21435-21438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10777]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944


Utah Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Utah regulatory 
program (hereinafter referred to as the ``Utah program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Utah 
proposed revisions to its civil penalty rules with the intent of making 
them consistent with recently promulgated revisions to the Utah Coal 
Reclamation Act of 1979.

EFFECTIVE DATE: May 2, 1995.

FOR FURTHER INFORMATION CONTACT:
Thomas E. Ehmett, Telephone: (505) 766-1486.

SUPPLEMENTARY INFORMATION: 

I. Background on the Utah Program

    On January 21, 1981, the Secretary of the Interior conditionally 
approved the Utah program. General background information on the Utah 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval of the Utah program can be 
found in the January 21, 1981, Federal Register (46 FR 5899). 
Subsequent actions concerning Utah's program and program amendments can 
be found at 30 CFR 944.15, 944.16, and 944.30.

II. Submission of Proposed Amendment

    By letter dated February 10, 1995, Utah at its own initiative 
submitted a proposed amendment to its program (administrative record 
No. UT-1019) pursuant to SMCRA (30 U.S.C. 1201 et seq.). Utah proposed 
to amend the Utah Coal Mining Rules at Utah Administrative Rules (Utah, 
Admin. R.) 645-401-120, 410, 430, 721, 810, 830, and 910, concerning 
civil penalties, and Utah Admin. R. 645-402-120, 420, and 422, 
concerning individual civil penalties. Utah did so with the intent of 
making them consistent with recently promulgated revisions to the Utah 
Coal Reclamation Act of 1979 (UCA 40-10 et seq.).
    OSM announced receipt of the proposed amendment in the February 27, 
1995, Federal Register (60 FR 10531; administrative record No. UT-1029) 
and in the same document opened the public comment period and provided 
an opportunity for a public hearing on the substantive adequacy of the 
proposed amendment. The public comment period closed on March 29, 1995. 
The public hearing, scheduled for March 24, 1995, was not held because 
no one requested an opportunity to testify.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds that the proposed Utah program amendment 
submitted by Utah on February 10, 1995, is no less effective than the 
corresponding Federal regulations. Thus, the Director approves the 
proposed amendment.

1. Nonsubstantive Revision to Utah's Rules

    Utah proposed a revision to previously-approved Utah Admin. R. 645-
401-430, concerning assessment of violations and unabated violations, 
that is nonsubstantive in nature and consists of the addition of the 
acronym ``UCA'' prior to referenced provisions of Utah's statute.
    Because the proposed revision to this previously-approved rule is 
nonsubstantive in nature, the Director finds that the proposed revision 
to Utah Admin. R. 645-401-430 is no less effective than the 
corresponding Federal regulation at 30 CFR 845.15(b)(2). The Director 
approves this proposed revision.

2. Substantive Revisions to Utah's Rules That Are Substantively 
Identical to the Corresponding Provisions of the Federal Regulations

    Utah proposed revisions to the following rules that are substantive 
in nature and contain language that is substantively identical to the 
requirements of the corresponding Federal regulations (listed in 
parentheses). The rules include revisions that transfer power for 
assessing civil penalties from the Board of Oil, Gas, and Mining 
(Board) to the Division of Oil, Gas, and Mining (Division). These rule 
revisions [[Page 21436]] implement previously approved statutory 
revisions at UCA 40-10-20 (1)(a) and (3)(a) that had the same effect 
(see finding No. 4, 59 FR 49185, 49187, September 27, 1994).

Utah Admin. R. 645-401-120 (30 CFR 845.11), concerning information on 
civil penalties;
Utah Admin. R. 645-401-410 (30 CFR 845.15(a)), concerning assessments 
of separate violations for each day;
Utah Admin. R. 645-401-721, 645-401-723.100, and 645-401-742 (30 CFR 
845.18(b)(1), 845.18(b)(3)(i), and 845.18(d)(2)), concerning procedures 
for informal assessment conferences;
Utah Admin. R. 645-401-810 (30 CFR 845.19(a)), concerning requests for 
formal hearings; and
Utah Admin. R. 645-402-420 and 645-402-422 (30 CFR 846.17(b) and 
846.17(b)(2)), concerning procedures for assessment of individual civil 
penalties.

    Because these proposed revisions of the Utah rules are 
substantively identical to the corresponding provisions of the Federal 
regulations, the Director finds that they are no less effective than 
the Federal regulations. The Director approves these proposed rules.

3. Utah Admin. R. 645-401-830, Formal Review of the Violation Fact or 
the Civil Penalty

    Utah proposed to revise Utah Admin. R. 645-401-830 to specify that 
formal review of the violation fact or penalty will be conducted by the 
Board under the provisions of the ``procedural rules of the Board (R641 
Rules).'' The ``procedural rules of the Board (R641 Rules)'' are 
entitled ``Rules of Practice and Procedure of the Utah Board of Oil, 
Gas and Mining.''
    The corresponding Federal regulations at 30 CFR 845.19(a) state 
that the person charged with the violation may contest the fact of a 
violation or the proposed penalty for a violation by submitting, among 
other things, a petition to the Office of Hearings and Appeals. The 
procedural requirements that apply to these appeals are included in the 
Federal program at 43 CFR 4.1150 through 4.1171.
    Utah's proposed reference to its ``procedural rules of the Board 
(R641 Rules)'' in proposed Utah Admin. R. 645-401-830 corresponds to 
the general reference in the Federal regulation at 30 CFR 845.19(a) to 
the Office of Hearings and Appeals. OSM previously approved, in Utah's 
original program, Utah's procedural requirements at Utah Admin. R. Part 
641, the ``Rules of Practice and Procedure of the Utah Board of Oil, 
Gas and Mining.'' (see finding No. 4(q), 46 FR 5899, 5910, January 21, 
1981).
    On this basis, the Director finds that the proposed revision to 
Utah Admin. R. 645-401-830 is no less effective than the Federal 
regulations at 845.19(a) and approves it.

4. Utah Admin. R. 645-401-910, Final Civil Penalty Assessment and 
Payment of Penalty

    Utah proposed to revise Utah Admin. R. 645-401-910 to require that, 
if the permittee fails to request a hearing as provided in Utah Admin. 
R. 645-401-810, the proposed civil penalty assessment will become a 
final order of the Division, rather than the Board. Utah also proposed 
revising Utah Admin. R. 645-401-910 to require that the penalty 
assessed will become due and payable upon expiration of the time 
allowed to request a hearing and ``upon the Division fulfilling its 
responsibilities under UCA 40-10-20(3)(e).'' Utah proposed to add the 
quoted language as part of this amendment.
    The counterpart Federal regulation at 30 CFR 845.20(a) requires 
that if the person to whom a notice of violation or cessation order is 
issued fails to request a hearing as provided for in 30 CFR 845.19, the 
proposed assessment shall become a final order of the Secretary and the 
penalty assessed shall become due and payable upon expiration of the 
time allowed to request a hearing.
    The Federal regulation at 30 CFR 845.20(a) differs from proposed 
Utah Admin. R. 645-401-910 only in that (1) it addresses the final 
order of the Secretary of the Interior and (2) it does not reference 
section 518(b) of SMCRA which is substantively identical to the Utah's 
referenced statutory provision at UCA 40-10-20(3)(e).
    Utah's referenced statutory provision at UCA 40-10-20(3)(e) 
provides that, if the person charged with a violation fails to avail 
himself of the opportunity for a public hearing, a civil penalty shall 
be assessed by the Division after it has (1) determined that a 
violation did occur, (2) determined the amount of the penalty that is 
warranted, and (3) issued an order requiring that the penalty be paid. 
These provisions of Utah's statute are implemented in Utah Admin. R. 
645-401-730, which states that the assessment conference officer will 
promptly serve the permittee with a notice of his or her action (i.e., 
an assessment notice) and will include a worksheet if the penalty has 
been lowered or raised from the original assessment.
    Proposed Utah Admin. R. 645-401-910 therefore requires that, if the 
permittee fails to request a hearing as provided in Utah Admin. R. 645-
401-810, the proposed civil penalty assessment (i.e., the assessment 
notice required in Utah Admin. R. 645-401-730) will become a final 
order of the Division.
    The Director finds that proposed Utah Admin. R. 645-401-910 is no 
less effective than the Federal regulation at 30 CFR 845.20(a) and 
approves it.

5. Utah Admin. R. 645-402-120, Information on Individual Civil 
Penalties

    Utah proposed to revise Utah Admin. R. 645-402-120 to require that 
a Division-appointed, rather than a Board-appointed, assessment officer 
will assess individual civil penalties.
    Proposed Utah Admin. R. 645-402-120 has no direct counterpart in 
the Federal regulations. However, the generally corresponding Federal 
regulation at 30 CFR 846.1 establishes the scope of OSM's individual 
civil penalty regulations when it states that 30 CFR Part 846 covers 
the assessment of individual civil penalties under section 518(f) of 
SMCRA.
    Utah's statutory provision which corresponds to, and is 
substantively identical to, section 518(f) of SMCRA is UCA 40-10-20(6). 
As discussed in finding No. 2 above, OSM previously approved Utah's 
statutory provisions at UCA 40-10-20 that transferred power for 
assessment of civil penalties from the Board to the Division. It 
naturally follows that Utah also has the discretion to select the same 
State entity to be responsible for assessments of individual civil 
penalties.
    On this basis, the Director finds that proposed Utah Admin. R. 645-
402-120 is consistent with its statute as well as the Federal 
regulation at 30 CFR 846.1. Therefore, the Director approves proposed 
Utah Admin. R. 645-402-120.

IV. Summary and Disposition of Comments

    Following are summaries of all substantive comments on the proposed 
amendment that were received by OSM, and OSM's responses to them.

1. Public Comments

    OSM invited public comments on the proposed amendment, but none 
were received.

2. Federal Agency Comments

    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Utah program. [[Page 21437]] 
    The U.S. Bureau of Mines responded on March 3, 1995, by telephone 
conversation, that it had no comments on the proposed amendment 
(administrative record No. UT-1028).
    The U.S. Army Corps of Engineers responded on March 14, 1995, that 
the changes to the Utah program were satisfactory (administrative 
record No. UT-1032).
    The U.S. Mine Safety and Health Administration (MSHA) responded on 
April 3, 1995, that no conflict could be found between the amendment 
and current MSHA regulations (administrative record No. UT-1040).

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit 
the written concurrence of EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    None of the revisions that Utah proposed to make in its amendment 
pertain to air or water quality standards. Therefore, OSM did not 
request EPA's concurrence.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (administrative record No. UT-1021). EPA 
responded on March 3, 1995, that it had no comments on the proposed 
amendment and did not believe that there would be any impacts to water 
quality standards promulgated under the Clean Water Act (administrative 
record No. UT-1031).

4. State Historic Preservation Officer (SHPO)

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO (administrative record No. UT-1021). 
The SHPO did not respond to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Utah on February 10, 1995.
    The Director approves, as discussed in: finding No. 1, Utah Admin. 
R. 645-401-430, concerning a nonsubstantive editorial revision; finding 
No. 2, Utah Admin. R. 645-401-120, Utah Admin. R. 645-401-410, Utah 
Admin. R. 645-401-721, 723.100, and 742, Utah Admin. R. 645-401-810, 
and Utah Admin. R. 645-402-420 and 422, concerning substantive 
revisions that are substantively identical to the corresponding Federal 
regulations; finding No. 3, Utah Admin. R. 645-401-830, concerning the 
formal review of the violation fact or the civil penalty; finding No. 
4, Utah Admin. R. 645-401-910, concerning the final civil penalty 
assessment and payment of penalty; and finding No. 5, Utah Admin. R. 
645-402-120, concerning information on individual civil penalties.
    The Director approves the rules as proposed by Utah with the 
provision that they be fully promulgated in identical form to the rules 
submitted to and reviewed by OSM and the public.
    The Federal regulations at 30 CFR part 944, codifying decisions 
concerning the Utah program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

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

2. Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and 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 or 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.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

4. Paperwork Reduction Act

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

5. Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The 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 Part 944

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 25, 1995.
Peter A. Rutledge,
Acting 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 (dd) to read as 
follows:


Sec. 944.15  Approval of amendments to the State regulatory program.

* * * * *
    (dd) Revisions to the following Utah Administrative Rules, as 
submitted to OSM on February 10, 1995, are approved effective May 2, 
1995.

                                                                        
[[Page 21438]]                                                          
645-401-120.........  How Civil Penalty Assessments Are Made.           
645-401-410 and 430.  Assessment of Separate Violations for Each Day.   
645-401-721,          Procedures for Informal Assessment Conferences.   
 723.100, and 742.                                                      
645-401-810 and 830.  Request for Formal Hearings.                      
645-401-910.........  Final Civil Penalty Assessment and Payment of     
                       Penalty.                                         
645-402-120.........  Information on Individual Civil Penalties.        
645-402-420 and 422.  Procedures for Assessment of Individual Civil     
                       Penalties.                                       
                                                                        

[FR Doc. 95-10777 Filed 5-1-95; 8:45 am]
BILLING CODE 4310-05-M