This section of the FEDERAL REGISTER

contains regulatory documents having general

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are keyed to and codified in the Code of

Federal Regulations, which is published under

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Rules and Regulations Federal Register

50539 

Vol. 73, No. 167 

Wednesday, August 27, 2008 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 944 

[UT–042–FOR; Docket ID OSM–2008–0016] 

Utah Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior. 

ACTION: Final rule; approval of 

amendment with certain exceptions. 

SUMMARY: We are approving, with 

certain exceptions, a proposed 

amendment to the Utah regulatory 

program (the ‘‘Utah program’’) under the 

Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act). Utah proposed to revise provisions 

of the Utah Code Annotated pertaining 

to small operator assistance and permit 

applications. Utah intended to revise its 

program to be consistent with SMCRA 

and to make editorial changes. 

DATES: Effective Date: August 27, 2008. 

FOR FURTHER INFORMATION CONTACT: 

James F. Fulton, Chief, Denver Field 

Division; Telephone: (303) 844–1400, 

extension 1424; Internet address: 

jfulton@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Utah Program 

II. Submission of the Proposed Amendment 

III. OSM Findings 

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

VI. Procedural Determinations 

I. Background on the Utah Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its State program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of this Act* * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the Utah 

program on January 21, 1981. You can 

find background information on the 

Utah program, including the Secretary’s 

findings, the disposition of comments, 

and conditions of approval of the Utah 

program in the January 21, 1981, 

Federal Register (46 FR 5899). You also 

can find later actions concerning Utah’s 

program and program amendments at 30 

CFR 944.15 and 944.30. 

II. Submission of the Proposed 

Amendment 

By letter dated October 22, 2002, Utah 

sent us an amendment to its program 

(UT–042–FOR, Administrative Record 

number UT–1171) under SMCRA (30 

U.S.C. 1201 et seq.). Utah sent the 

amendment in response to a June 19, 

1997, letter (Administrative Record 

number UT–1093) that we sent to the 

State in accordance with 30 CFR 

732.17(c). 

Utah previously addressed most of the 

topics included in our June 19, 1997, 

letter in amendment UT–038–FOR, 

which we approved in the April 24, 

2001 Federal Register (66 FR 20600). 

However, some of the topics described 

in our letter changed the small operator 

assistance program (SOAP) by raising 

the limit on coal production from 

100,000 tons to 300,000 tons and 

describing changes in the type of 

assistance available to eligible operators 

under that program. Our letter noted 

that those changes might require 

changes in State statutes. In Utah’s case, 

it must change the SOAP provisions in 

the Utah Code Annotated (UCA, or 

Utah’s Code or statute) before it can 

change its implementing rules. The 

amendment that is the subject of this 

final rule proposed to make the requisite 

SOAP changes in Utah’s Code. At its 

own initiative, the State proposed 

additional changes throughout the same 

section of its Code that involved other 

topics pertaining to permit applications 

to clarify wording and recodify certain 

parts. The clarifications consisted of 

rewording and restructuring sentences 

and phrases and changing punctuation. 

Specific changes Utah proposed to 

make to UCA 40–10–10 in this 

amendment include: Clarifying 40–10– 

10–(1), which describes application 

fees; designating new 40–10–10(2)(a) 

and clarifying it and (2)(a)(ii), (iii), (iv) 

and (vi), which generally describe how 

permit applications and reclamation 

plans are to be submitted to the State 

and describe ownership and right of 

entry information to be included with 

permit applications and reclamation 

plans; clarifying 40–10–10(2)(b), (c), and 

(d) and recodifying subordinate parts of 

those subsections, which describe the 

maps and information about legal right 

of entry, probable hydrologic 

consequences and other hydrology 

information, and characteristics of the 

coal to be mined that must be included 

in permit applications; removing 

existing 40–10–10(3) and replacing it 

with new 40–10–10(3)(a), (a)(i) through 

(a)(vi), (b), and (c), all of which pertain 

to assistance available to eligible small 

operators to gather and pay for certain 

baseline and survey data and limitations 

on that assistance; clarifying and 

recodifying 40–10–10(4)(a) and (b), 

which address availability of 

information pertaining to the coal; 

clarifying 40–10–10(5), which describes 

how to file a permit application; 

clarifying and recodifying 40–10– 

10(6)(a), (b), (b)(i) and (ii), which 

describe the proof and type of insurance 

required to accompany a permit 

application; and clarifying 40–10–10(7), 

which requires a blasting plan to be part 

of a permit application. 

We announced receipt of the 

proposed amendment in the January 6, 

2003, Federal Register (68 FR 521). In 

the same document, we opened the 

public comment period and provided an 

opportunity for a public hearing or 

meeting on the amendment’s adequacy 

(Administrative Record number UT– 

1178). We did not hold a public hearing 

or meeting because nobody requested 

one. The public comment period ended 

on February 5, 2003. We received 

comments from one Federal agency. 

We identified two concerns during 

our review of the amendment. One 

involved the proposed change at 

recodified UCA 40–10–10(2)(d)(ii) that 

would authorize Utah’s Division of Oil, 

Gas and Mining (DOGM) to waive 

considerably more application 

requirements than may be waived under 

the counterpart Federal provision at 


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Section 507(b)(15) of SMCRA. We 

discuss this topic further in part III.B.3 

of this final rule. The second concern 

involved Utah’s proposed removal of 

the phrase ‘‘for public inspection’’ from 

UCA 40–10–10(5), which requires 

permit applications to be filed at certain 

public offices in the counties where 

mining is to occur. Part III.B.5 of this 

final rule contains our discussion of this 

topic. We notified Utah of these 

concerns by letter dated February 21, 

2003 (Administrative Record number 

UT–1180). 

Utah responded in a letter dated 

August 31, 2007, by sending a new 

formal amendment to us 

(Administrative Record number UT–

1196). The new amendment included 

proposed revisions to the Utah Code 

that addressed the two concerns we 

raised on our February 21, 2003, letter, 

and that would make additional 

changes. We decided to process that 

new formal amendment to the Utah 

Code as amendment UT–044–FOR. We 

made the changes Utah proposed in 

amendment UT–044–FOR available for 

public comment and published our final 

decision on those changes to the Utah 

Code in the August 12, 2008 Federal 

Register (73 FR 46804). Therefore, no 

further action is required in this final 

rule. 

III. OSM’s Findings 

Following are the findings we made 

concerning amendment UT–042–FOR 

under SMCRA and the Federal 

regulations at 30 CFR 732.15 and 

732.17. We are approving the 

amendment with certain exceptions as 

described below. 

A. Minor Revisions to Utah’s Statute 

Utah proposed minor editorial 

changes in wording, punctuation, 

grammatical, and codification to the 

following previously-approved statutory 

provisions. Differences between the 

following proposed State statutory 

provisions and the SMCRA provisions 

(which are listed in parentheses) are 

minor: 

UCA 40–10–10(1), editorial changes 

to the requirement to include a fee with 

each application for a surface coal 

mining and reclamation permit, and the 

limitation on how much that fee may 

cost (Section 507(a) of SMCRA); 

UCA 40–10–10(4), editorial changes 

to the requirement to make certain 

information about coal seams, core and 

soil samples, and other information 

available to any person with an interest 

that may be adversely affected, changes 

to the description of information that is 

to be kept confidential, and codifying 

new subsections (4)(a) and (b) (Section 

507(b)(17) of SMCRA); 

UCA 40–10–10(6), editorial changes 

to the requirement for permit 

applications to include liability 

insurance certificates, changes to the 

description of required insurance, and 

codifying new subsections 40–10–

10(6)(a), (6)(b), and (6)(b)(i) and (ii) 

(Section 507(f) of SMCRA); and 

UCA 40–10–10(7), editorial changes 

to the requirement for permit 

applications to include a blasting plan 

(Section 507(g) of SMCRA). 

Because these changes are minor and 

contain wording that is the same as or 

similar to the corresponding provisions 

of SMCRA, we find that they are no less 

stringent than, and are in accordance 

with, the corresponding provisions of 

SMCRA. 

B. Revisions to Utah’s Statute That Are 

Not the Same as the Corresponding 

Provisions of SMCRA 

1. Property, Ownership, and Related 

Information Required in Permit 

Applications (UCA 40–10–10(2)(a)) 

Utah proposed to make a number of 

editorial changes at UCA 40–10–10(2) 

and (2)(a). Most of the editorial changes 

consist of adding punctuation, word 

changes, and rephrasing sentences and 

result in language that is the same as or 

similar to the corresponding provisions 

of SMCRA. The State also proposed to 

codify new subsection (a) to improve 

the section’s paragraph structure. 

In addition, Utah’s proposed changes 

at UCA 40–10–10(2)(a)(ii) would replace 

the term ‘‘property’’ with the term 

‘‘estate’’ and rephrase the provision to 

refer directly to the surface and mineral 

estates to be mined. Existing UCA 40–

10–10(2)(a)(ii) requires permit 

applications to include information 

describing ‘‘* * * every legal owner of 

record of the property (surface and 

mineral) to be mined.’’ In a telephone 

conversation of December 26, 2002, 

DOGM explained that use of the term 

‘‘estate’’ is more appropriate (than use of 

the term ‘‘property’’ is) to address 

situations in which ownership of 

surface land and subsurface minerals in 

areas to be mined is not the same 

(Administrative Record number UT–

1177). 

We considered comments suggesting a 

similar change when we proposed 

defining the term ‘‘property to be 

mined’’ at 30 CFR 701.5 (48 FR 44344; 

September 28, 1983). Commenters 

asserted ‘‘that the term ‘estate to be 

mined’ would be more correct legally 

***’’ and would eliminate confusion 

with the phrase ‘‘on and underneath 

lands’’ that we proposed as part of the 

definition at that time. We decided to 

retain the term ‘‘property to be mined’’

because it is based on the wording of 

section 507(b)(1) of SMCRA and is a 

generally understood and recognized 

term. At the same time, however, we 

recognized that section 507(b)(1) 

requires the permit information to list 

‘‘the legal owners of record of the 

property to be mined, including the 

surface and mineral rights’’ and that the 

definition at 30 CFR 701.5 ‘‘requires 

inclusion of the estates within the 

permit area.’’

We also recognize, however, that our 

standard for evaluating Utah’s 

amendment does not require that the 

State’s provisions mirror SMCRA and 

the Federal regulations. State 

alternatives to the Federal provisions 

are acceptable if they are ‘‘in accordance 

with’’ the requirements of SMCRA and 

are ‘‘consistent with’’ the Federal 

regulations, as provided in 30 CFR 

732.15(a) (46 FR 53376; October 28, 

1981). As defined at 30 CFR 730.5(a), 

‘‘consistent with’’ and ‘‘in accordance 

with’’ mean—

[w]ith regard to the Act [SMCRA], the State 

laws and regulations are no less stringent 

than, meet the minimum requirements of and 

include all applicable provisions of the Act. 

As defined by Black’s Law Dictionary, 

‘‘estate’’ means ‘‘the amount, degree, 

nature, and quality of a person’s interest 

in land or other property.’’ Surface land 

and subsurface minerals of the same 

parcel constitute real property but might 

be the property of different owners as 

separate, or split, ‘‘estates.’’ By 

distinguishing between the surface and 

mineral estates, Utah’s proposed 

provision more clearly recognizes that a 

person’s interest in property to be 

mined might include one or the other 

estate and not necessarily both. The 

State’s proposed use of the term ‘‘estate’’

in place of ‘‘property’’ is consistent with 

the practice of split surface land and 

subsurface mineral ownership often 

encountered in Utah and elsewhere. In 

that context, the proposed change makes 

the provision more specific in terms of 

requiring information in a permit 

application that identifies the amount, 

degree, nature, and quality of a person’s 

interest in the property to be mined. 

The Federal counterpart to proposed 

UCA 40–10–10(2)(a)(ii) is section 

507(b)(1)(B) of SMCRA. As noted 

previously, that provision requires a 

permit application to contain 

information identifying—

(B) every legal owner of record of the 

property (surface and mineral), to be mined; 

The counterpart Federal regulations at 

30 CFR 778.13 and 13(a) require the 

permit application to include 


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Federal Register / Vol. 73, No. 167 / Wednesday, August 27, 2008 / Rules and Regulations 50541 

information identifying each legal or 

equitable owner(s) of record of the 

surface and mineral for ‘‘the property to 

be mined.’’ As defined at 30 CFR 701.5, 

the term ‘‘property to be mined’’

means—

[b]oth the surface and mineral estates within 

the permit area and the area covered by 

underground workings. 

As defined at Utah Administrative 

Rule R645–100–200, ‘‘property to be 

mined’’ means—

[b]oth the surface estates and mineral estates 

within the permit area and the area covered 

by underground workings. 

The phrase ‘‘surface and mineral 

estate’’ as proposed at UCA 40–10–

10(2)(a)(ii) is the basis for the 

definitions of ‘‘property to be mined’’ in 

Utah’s Administrative Rule and the 

Federal regulations. The term ‘‘property 

to be mined’’ as defined in the Utah 

Administrative Rules and the Federal 

regulations has one meaning: ‘‘Both the 

surface and mineral estates within the 

permit area and the area covered by 

underground workings * * *.’’

Conversely, and logically, then, the 

phrase ‘‘both the surface and mineral 

estates within the permit area and the 

area covered by underground workings’’

means ‘‘property to be mined.’’ If 

‘‘property to be mined’’ means ‘‘both the 

surface and mineral estates * * *,’’ then 

changing the phrase to ‘‘surface and 

mineral estates to be mined’’ makes the 

phrase more specific as proposed at 

UCA 40–10–10(2)(a)(ii) while creating 

no substantive difference between it and 

the defined term ‘‘property to be 

mined.’’ In that context, we consider the 

proposed term ‘‘surface and mineral 

estate to be mined’’ to be 

interchangeable with ‘‘property to be 

mined’’ in Utah’s Code and synonymous 

with the term ‘‘property (surface and 

mineral), to be mined’’ in SMCRA. 

Utah’s proposed change from 

‘‘property (surface and mineral) to be 

mined’’ to ‘‘surface and mineral estate to 

be mined’’ provides more specificity 

while still requiring the same 

information for the same areas covered 

by the counterpart provisions in the 

Utah Administrative Rule, SMCRA, and 

the Federal regulations. Moreover, the 

phrase is consistent with the definition 

of ‘‘property to be mined’’ in the Utah 

Administrative Rule and the Federal 

regulations. As proposed with the 

changes described above, we find 

proposed UCA 40–10–10(2)(a)(ii) is in 

accordance with and therefore no less 

stringent than SMCRA and can be 

approved. 

2. Permit Application Requirements for 

Information Describing the Land To Be 

Affected and the Applicant’s Legal Right 

To Enter and Begin Surface Mining 

Operations, and a Determination of 

Probable Hydrologic Consequences of 

Mining and Reclamation (UCA 40–10–

10(2)(b) and (c)) 

The State proposes several editorial 

changes to UCA 40–10–10(2)(b) and (c). 

At UCA 40–10–10(2)(b), it proposes 

editorial changes to the description of 

certain information to be included in 

permit applications, including maps or 

plans of land to be affected and a 

statement of right of entry and to mine, 

editorial changes to a prohibition on 

adjudicating property title disputes, and 

codifying new subsections 40–10–

10(2)(b)(i), (2)(b)(i)(A) and (B), and 

2(b)(ii) (Section 507(b)(9) of SMCRA). 

One editorial change includes the 

addition of the phrase ‘‘[a] permit 

application shall include * * *’’ as 

subsection (2)(b)(i) to introduce to the 

discussion of information requirements 

that follow in recodified subsections 

(2)(b)(i)(A) through (B)(ii). 

At UCA 40–10–10(2)(c), Utah 

proposes to make editorial changes to 

the description of certain other 

information to be included in permit 

applications concerning probable 

hydrologic consequences (PHC) of 

mining and the quantity and quality of 

surface and groundwater, to 

requirements for collecting hydrologic 

data and submitting PHC 

determinations, and a restriction against 

permit approval pending inclusion of 

this information in an application, and 

codifying new subsections 40–10–

10(2)(c)(i), (2)(c)(i)(A), (B), and (C), and 

(2)(c)(ii) and (iii) (Section 507(b)(11) of 

SMCRA). An editorial change to this 

section includes the addition of the 

phrase ‘‘[a] permit application shall also 

include * * *’’ to introduce the 

discussion of information requirements 

that follow in recodified subsections 

2(c)(i)(A) through (C)(iii). 

The editorial changes to UCA 40–10–

10(2)(b) and (c) are intended to make 

Utah’s Code easier to read and 

understand. Most of those changes are 

minor and contain wording that is the 

same as or similar to the corresponding 

provisions of SMCRA. As a result, we 

find that they are no less stringent than, 

and are in accordance with, the 

corresponding provisions of SMCRA. 

Though intended to make the Code 

easier to read and understand, the 

proposed introductory phrases at 

recodified UCA 40–10–10(2)(b)(i) and 

2(c)(i) described above may appear to 

limit the information requirements to 

permit applications. Existing UCA 40–

10–10(2), which includes existing (2)(b) 

and (c), describes information that must 

be included ‘‘in the permit application 

and the reclamation plan submitted as 

part of a permit application * * *.’’ The 

proposed recodified version of UCA 40–

10–10(2)(a) retains the reference to the 

reclamation plan. However, the 

proposed introductory phrases at UCA 

40–10–10(2)(b)(i) and (2)(c)(i) refer to 

information that must be included in a 

permit application and do not reference 

a reclamation plan. 

Despite the omission of references to 

a reclamation plan in the proposed 

introductory phrases at proposed UCA 

40–10–10(2)(b)(i) and (2)(c)(i), we 

believe the revised wording is not 

limiting. ‘‘Permit’’ is defined at UCA 

40–10–3(11) as—

a permit to conduct surface coal mining and 

reclamation operations issued by the 

division. 

UCA 40–10–3(18) defines 

‘‘reclamation plan’’ as—

A plan submitted by an applicant for a 

permit which sets forth a plan for 

reclamation of the proposed surface coal 

mining operations pursuant to section 40–

10–10. 

UCA 40–10–10 applies to—

Permit application fee—Submission of 

application and reclamation plan—

Determinations, test, and samplings—Filing 

of application—Insurance required—Blasting 

plan. 

Further, existing UCA 40–10–10(2) 

(and proposed recodified UCA 40–10–

10(2)(a)) describe information submitted 

with the ‘‘permit application and the 

reclamation plan submitted as part of a 

permit application* * *.’’

UCA 40–10–11 sets forth 

requirements the State must follow in 

approving permit applications. UCA 40–

10–11(2)(b) prohibits Utah from 

approving a permit application unless 

the—

application affirmatively demonstrates and 

the division finds in writing on the basis of 

the information set forth in the application or 

from information otherwise available * * * 

that * * * (b) the applicant has 

demonstrated that the reclamation 

requirements under this chapter can be 

accomplished under the reclamation plan 

contained in the permit application * * *. 

Sections 507(b)(9) and (b)(11) of 

SMCRA are the Federal counterparts to 

proposed UCA 40–10–10(b)(i) through 

(ii) and (c)(i) through (iii). Section 

507(b) of SMCRA, which includes 

subsections (b)(9) and (b)(11), describes 

information that must be submitted in 

the ‘‘permit application’’ and does not 

refer to a reclamation plan. The 

provisions that follow in Section 508 of 

SMCRA, however, describe information 


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to be included in reclamation plans that 

must be—

submitted as part of a permit application 

* * * in the degree of detail necessary to 

demonstrate that reclamation required by the 

State * * * can be accomplished. 

Our review of Utah’s Code, as 

summarized above, shows that the 

proposed introductory phrases will not 

limit information required in permit 

applications. A reclamation plan 

remains a required part of the 

application for a permit to conduct 

surface coal mining and reclamation 

operations in Utah. An applicant for a 

permit to conduct surface coal mining 

and reclamation operations still must 

submit to the State an application 

demonstrating that the applicant can 

accomplish the reclamation 

requirements of Chapter 10 of Title 40 

of the Utah Code Annotated. Though 

UCA 40–10–10 combines in one section 

the State’s counterparts to Sections 507 

and 508 of SMCRA and is worded 

somewhat differently, we interpret 

proposed UCA 40–10–10(2)(b) and (c) 

and their subordinate parts to require 

the same type of information in a permit 

application as is required in counterpart 

sections 507 and 508 of SMCRA. We 

therefore find that the proposed changes 

at UCA 40–10–10(2)(b) and (c) are not 

inconsistent with and are no less 

stringent than the provisions of SMCRA 

and can be approved. 

3. Permit Application Requirements for 

Information About Test Borings, Core 

Samplings, and Chemical and Physical 

Characteristics of the Coal Seam, 

Overburden, and Strata Underlying the 

Coal, and Provision for Waiving the 

Requirement for This Information; UCA 

40–10–10(2)(D)(i) and (ii) 

Utah proposes to make a number of 

editorial changes at UCA 40–10–

10(2)(d). Existing UCA 40–10–10(2)(d) 

describes information required in 

permit applications that describes 

results of test borings, core samplings, 

physical and chemical characteristics of 

the coal seam, overburden, and of the 

strata under the coal. It also authorizes 

DOGM to waive the requirement for this 

information if a written finding 

concludes it is unnecessary. Utah 

proposes to codify these provisions as 

new subsections (2)(d)(i) and (2)(d)(i)(A) 

through (F) and to codify the waiver 

provision as new subsection (2)(d)(ii). 

Most of the editorial changes are minor. 

However, a change Utah proposed in 

this amendment to the waiver provision 

would make it less stringent than 

SMCRA. 

Existing (2)(d) allows DOGM to waive 

the requirements ‘‘* * * of this 

Subsection * * *’’ if it finds, in writing, 

that they are unnecessary. We interpret 

the existing waiver’s reference to ‘‘this 

Subsection’’ to mean existing subsection 

(d), which is limited to the information 

described above and is consistent with 

the scope of the waiver in the 

counterpart Federal provision at Section 

507(b)(15) of SMCRA. 

As proposed at UCA 40–10–

10(2)(d)(ii) in amendment UT–042–

FOR, however, Utah would revise its 

provision by allowing DOGM to waive 

the application requirements of ‘‘* * * 

this Subsection (2) * * *’’ upon 

finding, in writing, that they are 

unnecessary. By specifically referring to 

‘‘Subsection (2)’’ of UCA 40–10–10, the 

Division may waive much more 

information than is described under 

existing subsection (2)(d) or proposed 

subsections (2)(d)(i) and (2)(d)(i)(A) 

through (F). Entire subsection (2) 

describes required application 

information about ownership, maps and 

plans, hydrology and probable 

hydrologic consequences, as well as the 

test borings, core samplings, and the 

physical and chemical characteristics of 

the coal, the overburden, and the 

stratum underlying the coal. That 

includes considerably more information 

than may be waived under Section 

507(b)(15) of SMCRA, which says the 

provisions of ‘‘this paragraph (15) may 

be waived’’ if the regulatory authority 

determines, in writing, that they are 

unnecessary. Referenced ‘‘paragraph 

(15)’’ of Section 507(b) of SMCRA is 

limited to descriptions of test borings 

and core samplings and the physical 

and chemical characteristics of the coal, 

the overburden, and the stratum 

underlying the coal. 

For the reason described above, we 

found proposed subsection 40–10–

10(2)(d)(ii) is less stringent than the 

counterpart Federal provision at Section 

507(b)(15) of SMCRA. We notified Utah 

of our finding in a letter dated February 

21, 2003 (Administrative Record 

number UT–1180). Utah responded in a 

letter dated August 31, 2007, by sending 

a new formal amendment to us 

(Administrative Record number UT–

1196). The new amendment included 

proposed revisions to the Utah Code 

that addressed the concern we raised on 

our February 21, 2003, letter and other 

proposed changes. We decided to 

process that new formal amendment to 

the Utah Code as amendment UT–044–

FOR and published it in the August 12, 

2008 Federal Register (73 FR 46804). As 

a result, no further action is required, on 

the changes Utah proposed at UCA 40–

10–10(2)(d) through (2)(d)(ii) in 

amendment UT–042–FOR. 

4. Eligibility Criteria for Small Operator 

Assistance Program; Payment for SOAP 

Services; SOAP Services Provided; 

Providers of SOAP Services; and 

Repayment of Services Upon 

Ineligibility; UCA 40–10–10(3)(a), (b), 

and (c) 

Utah proposed to remove the existing 

provisions for small operator assistance 

at UCA 40–10–10(3), replace them with 

new provisions, and reorganize and 

codify the entire subsection as UCA 40–

10–10(3)(a), (3)(a)(i) through (vi), (3)(b), 

and (3)(c). These are the statutory 

changes Utah must make before it may 

change its rules in response to items 

X.A.2, 3, and 4 of the June 19, 1997, 

letter we sent to the State under 30 CFR 

732.17. 

Proposed UCA 40–10–10(3)(a) is 

similar to counterpart Section 507(c)(1) 

and (c)(1)(A) through (F) of SMCRA in 

all ways but one. It establishes an upper 

limit on total annual coal production of 

300,000 tons from all sources as the 

basic criterion for operators to meet to 

be eligible for small operator assistance. 

It also provides that the Division will 

pay for the cost of assistance upon an 

eligible operator’s written request. 

Unlike SMCRA, however, it proposes to 

make DOGM’s payment for assistance 

contingent on the availability of funds 

under SMCRA. 

In the regulatory program Utah 

submitted to us in 1980 for review and 

Secretarial approval, the State 

conditioned its payment of costs for 

assistance to small operators ‘‘ * * * 

upon receipt of funding from the Office 

of Surface Mining’’ (Administrative 

Record numbers UT–1 and UT–2). We 

concluded that the contingency made 

Utah’s Code inconsistent with, and less 

stringent than, SMCRA because it 

‘‘lessens the requirement that all small 

operators be provided this service 

***’’ (45 FR 70481, 70484; October 

24, 1980). As a result, we disapproved 

the proposed contingency in Utah’s 

original program submittal and required 

the State to amend its Code to remove 

it as one condition of the Secretary’s 

approval (46 FR 5899, 5900; January 21, 

1981). Once Utah removed the proposed 

contingency, we removed that condition 

of program approval effective June 22, 

1982 (47 FR 26827; 26828). 

We implemented the ‘‘Procedures and 

Criteria for Approval or Disapproval of 

State Programs and Small Operator 

Assistance’’ in the January 18, 1983, 

final rule Federal Register (48 FR 2266). 

In the preamble to that final rule, we 

explained that ‘‘* * * States will have 

the option of requesting grant assistance 

for funds appropriated for the SOAP 

***’’ while noting that ‘‘* * * there 


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are a variety of mechanisms through 

which the State may provide the 

required section 507(c) [of SMCRA] 

analyses and statements * * *’’ without 

being required to ‘‘* * * participate in 

the SOAP grants program.’’ We also said 

‘‘[c]osts for providing SOAP services 

using alternative mechanisms would be 

eligible for funding under the State’s 

* * * grant as outlined in 30 CFR Part 

735 * * *.’’ Further, we noted that, 

‘‘[u]nder § 795.11, as proposed, a State 

intending to administer a small 

operators assistance program under a 

grant from OSM could submit a grant 

application for funding of the program 

under the procedures of 30 CFR Part 735 

***’’ (48 FR 2266; 2266 and 2267). 

At the same time, we characterized 30 

CFR Part 795 as an elective means of 

complying with the requirements of 

Section 507(c) of SMCRA (Id. at 2267, 

2268). In the discussion of 30 CFR 

795.2, we explained that it—

* * * does not require a separate 

organization within the structure of the 

regulatory authority to provide services to a 

limited number of small operators, but only 

requires that the mechanism to provide 

services be in place * * * (Id. at 2267). 

Finally, in the preamble discussion of 

30 CFR 795.9, we said—

* * * new § 795.9(a) will provide that to the 

extent possible with available funds the 

program administrator shall select and pay a 

qualified laboratory to make the 

determination and statement referenced in 

Section 507(c) of the Act for eligible 

operators who request assistance. The 

regulatory authority through the program 

administrator shall not be required by OSM 

to provide funds for the purpose of § 795.9(a) 

beyond those funds authorized by Section 

401(b)(1) of the Act and appropriated by 

Congress * * * (emphasis added). 

The regulation at 30 CFR 795.9(a) 

referenced above provides for paying 

the costs of services described at 

sections 795.9(b)(1) through (6), which 

are the regulatory counterparts to 

Sections 507(c)(1)(A) through (F) of 

SMCRA. These SMCRA provisions, in 

turn, are the Federal counterparts to 

sections 40–10–10(3)(a)(i) through (vi) 

of Utah’s Code as proposed in this 

amendment. 

Proposed UCA 40–10–10(3)(a), (b), 

and (c) will provide Utah with an 

updated mechanism to provide 

assistance to eligible small operators. 

Under those proposed provisions, 

payment for services is contingent on 

the availability of funds under SMCRA 

consistent with our continuing position 

that we will not require DOGM ‘‘* * * 

to provide funds for the purpose of 

§ 795.9(a) beyond those funds 

authorized by Section 401(b)(1) of the 

Act and appropriated by Congress 

* * *.’’

Our review found that crossreferences in proposed UCA 40–10–

10(3)(a)(i), (ii), and (iii) are consistent 

with the counterpart cross-references in 

SMCRA. 

Proposed UCA 40–10–10(3)(b) would 

require those activities described at 

(3)(a)(i) through (iv) to be performed by 

a qualified laboratory or other entity. It 

is worded consistent with the 

counterpart provision at Section 

507(c)(1) of SMCRA. 

Finally, proposed UCA 40–10–

10(3)(c) requires an operator who 

received assistance under SOAP to 

reimburse DOGM if the Division finds 

that the operator’s production exceeded 

300,000 tons in the 12-month period 

immediately following issuance of that 

operator’s mining permit. It is worded 

consistent with the counterpart 

provision at Section 507(h) of SMCRA. 

For the reasons described above, we 

find that proposed UCA 40–10–10(3)(a), 

(3)(a)(i) through (iv), (3)(b), and (3)(c) 

are in accordance with and no less 

stringent than the counterpart 

provisions of SMCRA. 

5. Requirement To File Permit 

Applications With the County Clerk or 

Other Public Office; UCA 40–10–10(5) 

Existing UCA 40–10–10(5) requires 

mine permit applications to be filed 

with the county clerk for public 

inspection, or at some other public 

office approved by DOGM, in the county 

where mining is to occur. The 

requirement excludes information about 

the coal seam. Utah proposes to change 

this section to make minor editorial 

changes in wording and punctuation. It 

also proposes to remove the phrase ‘‘for 

public inspection’’ from the filing 

requirement. 

Removing the phrase ‘‘for public 

inspection’’ appears to remove the 

provision’s purpose. Absent the 

requirement to make an application 

available for public inspection, there is 

no other reason stated in this provision 

for requiring it to be filed with the 

county clerk or in another public office. 

The existing approved provision directs 

the applicant to file a copy of the 

application specifically so the public 

can inspect it at a public office in the 

county where mining is to occur. 

We notified Utah of our concern in a 

letter dated February 21, 2003 

(Administrative Record number UT–

1180). Utah responded in a letter dated 

August 31, 2007, by sending a new 

formal amendment to us 

(Administrative Record number UT–

1196). That amendment included 

proposed revisions to the Utah Code 

that addressed the concern we raised on 

our February 21, 2003, letter. We 

decided to process that new formal 

amendment to the Utah Code as 

amendment UT–044–FOR and 

published it in the August 12, 2008 

Federal Register (73 FR 46804). As a 

result, no further action is required on 

the changes Utah proposed at UCA 40–

10–10(5) in amendment UT–042–FOR. 

IV. Summary and Disposition of 

Comments 

Public Comments 

We asked for public comments on the 

amendment (Administrative Record 

numbers UT–1173 and UT–1178) but 

did not receive any. 

Federal Agency Comments 

Under 30 CFR 732.17(h)(11)(i) and 

Section 503(b) of SMCRA, we requested 

comments on the amendment from 

various Federal agencies with an actual 

or potential interest in the Utah program 

(Administrative Record number UT–

1173). 

The Salt Lake City, Utah, office of the 

U.S. Department of Agriculture, Natural 

Resources Conservation Service (NRCS), 

responded to our request in an e-mail 

message dated November 29, 2002 

(Administrative Record number UT–

1175). NRCS said it reviewed the formal 

amendment and had no comments on it. 

Environmental Protection Agency (EPA) 

Concurrence and Comments 

Under 30 CFR 732.17(h)(11)(i) and 

(ii), we are required to get concurrence 

from EPA for those provisions of the 

program amendment that relate to air or 

water quality standards issued 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 this amendment 

pertain to air or water quality standards. 

Therefore, we did not ask EPA to concur 

on the amendment. However, we 

requested comments from the EPA 

under 30 CFR 732.17(h)(11)(i) 

(Administrative Record number UT–

1173). EPA responded in a telephone 

conversation on December 2, 2002, that 

it had no comments on the amendment 

(Administrative Record number UT–

1176). 

State Historic Preservation Officer 

(SHPO) and the Advisory Council on 

Historic Preservation (ACHP) 

Under 30 CFR 732.17(h)(4), we are 

required to request comments from the 

SHPO and ACHP on amendments that 

may have an effect on historic 

properties. On October 31, 2002, we 

requested comments on Utah’s 


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amendment (Administrative Record 

number UT–1173), but neither 

responded to our request. 

V. OSM’s Decision 

Based on the above findings, we 

approve, with the following exceptions, 

Utah’s October 22, 2002 amendment: 

We defer a decision until we complete 

our review of amendment UT–044–FOR, 

as discussed in finding number III.B.3, 

on proposed changes to UCA 40–10–

10(2)(d) through (2)(d)(ii), concerning 

information requirements for permit 

applications, including information 

about test borings, core samplings, and 

chemical and physical characteristics of 

the coal seam, overburden, and strata 

underlying the coal, and a provision for 

waiving the requirement for that 

information; and 

We also defer a decision until we 

complete our review of amendment UT–

044–FOR, as discussed in finding 

number III.B.5, on proposed changes to 

UCA 40–10–10(5), concerning the 

requirement to file a copy of a permit 

application for public inspection with 

the county clerk or an appropriate 

public office. 

To implement this decision, we are 

amending the Federal regulations at 30 

CFR Part 944, which codify decisions 

concerning the Utah program. We find 

that good cause exists under 5 U.S.C. 

553(d)(3) to make this final rule 

effective immediately. Section 503(a) of 

SMCRA requires that the State’s 

program demonstrates that the State has 

the capability of carrying out the 

provisions of the Act and meeting its 

purposes. Making this regulation 

effective immediately will expedite that 

process. SMCRA requires consistency of 

State and Federal standards. 

Effect of OSM’s Decision 

Section 503 of SMCRA provides that 

a State may not exercise jurisdiction 

under SMCRA unless the Secretary 

approves the State’s program. Similarly, 

30 CFR 732.17(a) requires that any 

change of an approved State program be 

submitted to OSM for review as a 

program amendment. The Federal 

regulation at 30 CFR 732.17(g) prohibits 

any changes to approved State programs 

that are not approved by OSM. In our 

oversight of the Utah program, we will 

recognize only the statutes, regulations 

and other materials we have approved, 

together with any consistent 

implementing policies, directives and 

other materials. We will require Utah to 

enforce only approved provisions. 

VI. Procedural Determinations 

Executive Order 12630—Takings 

This rule does not have takings 

implications. This determination is 

based on the analysis performed for the 

counterpart Federal regulation. 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

(OMB) under Executive Order 12866 

(Regulatory Planning and Review). 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

conducted the reviews required by 

section 3 of Executive Order 12988 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 

because each program is drafted and 

promulgated by a specific State, not by 

OSM. Under Sections 503 and 505 of 

SMCRA (30 U.S.C. 1253 and 1255) and 

the Federal regulations at 30 CFR 

730.11, 732.15, and 732.17(h)(10), 

decisions on proposed State regulatory 

programs and program amendments 

submitted by the States must be based 

solely on a determination of whether the 

submittal is consistent with SMCRA and 

its implementing Federal regulations 

and whether the other requirements of 

30 CFR Parts 730, 731, and 732 have 

been met. 

Executive Order 13132—Federalism 

This rule does not have Federalism 

implications. SMCRA delineates the 

roles of the Federal and State 

governments with regard to the 

regulation of surface coal mining and 

reclamation operations. One of the 

purposes of SMCRA is to ‘‘establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ Section 503(a)(1) of 

SMCRA requires that State laws 

regulating surface coal mining and 

reclamation operations be ‘‘in 

accordance with’’ the requirements of 

SMCRA, and Section 503(a)(7) requires 

that State programs contain rules and 

regulations ‘‘consistent with’’

regulations issued by the Secretary 

pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on Federally 

recognized Indian tribes and have 

determined that the rule does not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

The changes that are the subject of this 

rule are limited to aspects of the small 

operator assistance program and mine 

permit applications applicable to coal 

mining and reclamation on non-Indian 

lands within the jurisdiction of the State 

of Utah. The rule does not involve or 

affect Indian tribes in any way. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211 which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

National Environmental Policy Act 

This rule does not require an 

environmental impact statement 

because 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)). 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3507 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies 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, 

which is the subject of this rule, is based 

on counterpart Federal regulations for 

which an economic analysis was 

prepared and certification made that 

such regulations would not have a 

significant economic effect on a 

substantial number of small entities. In 


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making the determination as to whether 

this rule would have a significant 

economic impact, the Department relied 

on the data and assumptions for the 

counterpart Federal regulations. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: 

a. Does not have an annual effect on 

the economy of $100 million; 

b. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions; and 

c. Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

This determination is based on the 

fact that the State submittal, which is 

the subject of this rule, is based on 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation was not considered a major 

rule. 

Unfunded Mandates 

This rule will not impose an 

unfunded mandate on State, local, or 

Indian tribal governments or the private 

sector of $100 million or more in any 

given year. This determination is based 

on the fact that the State submittal, 

which is the subject of this rule, is based 

on counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation did not impose an unfunded 

mandate. 

List of Subjects in 30 CFR Part 944 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: July 17, 2008. 

Allen D. Klein, 

Director, Western Region. 

■ For the reasons set out in the 

preamble, 30 CFR 944 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 in the 

table by adding a new entry in 

chronological order by ‘‘Date of Final 

Publication’’ to read as follows: 

§ 944.15 Approval of Utah regulatory 

program amendments 

* * * * * 

Original amendment 

submission date 

Date of final 

publication Citation/description 

* * * * * * * 

October 22, 2002 ........ August 27, 2008 .......... Utah Code Annotated 40–10–10(1), (2)(a)(i) through (vi), (2)(b)(i), (i)(A) and (i)(B), and (ii), 

(2)(c)(i), (c)(i)(A) through (C), and (2)(c)(iii), (3)(a), (b), and (c), and (4)(a) and (b). Decision 

deferred on UCA 40–10–10(2)(d) through (2)(d)(ii) and 40–10–10(5). 

[FR Doc. E8–19840 Filed 8–26–08; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket No. USCG–2008–0832] 

RIN 1625–AA08 

Special Local Regulations for Marine 

Events; Choptank River, Cambridge, 

MD 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard proposes to 

temporarily change the enforcement 

period for special local regulations 

during the ‘‘Cambridge Offshore 

Challenge’’, a marine event held 

annually on the waters of Choptank 

River near Cambridge, Maryland. 

Special local regulations are necessary 

to provide for the safety of life on 

navigable waters during the event. This 

action is intended to restrict vessel 

traffic in portions of the Choptank River 

during the event. 

DATES: This rule is effective from 11:30 

a.m. September 20, 2008 until 5:30 p.m. 

September 21, 2008. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket are part of docket USCG–2008–

0832 and are available online at 

www.regulations.gov. They are also 

available for inspection or copying at 

two locations: the Docket Management 

Facility (M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays, 

and the Fifth Coast Guard District, 431 

Crawford Street, Portsmouth, VA 23704 

between 10 a.m. and 2 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

rule, call Dennis Sens, Project Manager, 

Fifth Coast Guard District, Prevention 

Division, (757) 398–6204. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366–

9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

The Coast Guard is issuing this 

temporary final rule without prior 

notice and opportunity to comment 

pursuant to authority under section 4(a) 

of the Administrative Procedure Act 

(APA) (5 U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because 

immediate action is needed to minimize 

potential danger to the public during the 

event. The necessary information 

regarding the change of date for this 

annual recurring marine event was not 

provided with sufficient time to publish 

an NPRM. The potential dangers posed 

by a high speed power boat race 

conducted on the waterway with other 

vessel traffic makes special local 

regulations necessary to provide for the 

safety of participants, spectator craft and 

other vessels transiting the event area. 

For the safety concerns noted, it is in 

the public interest to have these 

regulations in effect during the event. 


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