# Utah Regulatory Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A95-10777 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** May 2, 1995 - **Citation:** 60 FR 21435 ## Text 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. ----------------------------------------------------------------------- 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-10777. Public record. Not legal advice.