[Federal Register Volume 73, Number 167 (Wednesday, August 27, 2008)]
[Rules and Regulations]
[Pages 50539-50545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19840]



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

[[Page 50539]]



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: 
[email protected].

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

[[Page 50540]]

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

[[Page 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

[[Page 50542]]

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

[[Page 50543]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  795.9(a) beyond those funds authorized by Section 
401(b)(1) of the Act and appropriated by Congress * * *.''
    Our review found that cross-references 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

[[Page 50544]]

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

[[Page 50545]]

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.

0
For the reasons set out in the preamble, 30 CFR 944 is amended as set 
forth below:

PART 944--UTAH

0
1. The authority citation for part 944 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
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:


Sec.  944.15  Approval of Utah regulatory program amendments

* * * * *

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         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