[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]
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