[Federal Register Volume 78, Number 29 (Tuesday, February 12, 2013)]
[Rules and Regulations]
[Pages 9807-9811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03054]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944

[SATS No. UT-047-FOR; Docket ID No. OSM-2010-0012]


Utah Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving an 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 revisions to and 
additions of rules pertaining to Valid Existing Rights (VER). Utah 
revised its program to be consistent with the corresponding Federal 
regulations.

[[Page 9808]]


DATES: Effective Date: February 12, 2013.

FOR FURTHER INFORMATION CONTACT: Kenneth Walker, Chief, Denver Field 
Division, Telephone: (303) 293-5012, Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM's) 
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 can also 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 August 9, 2010, Utah sent us an amendment to its 
program (SATS number UT-047-FOR, Administrative Record No. UT-1224) 
under SMCRA (30 U.S.C. 1201 et seq.). Utah sent the amendment in 
response to our February 1, 2008, letter to Utah sent in accordance 
with 30 CFR 732.17(c) (Administrative Record No. UT-1223). The 
provisions of the Utah Administrative Code (UAC) that Utah proposed to 
revise and/or add were: R645-100-200, Definition of Valid Existing 
Rights; R645-103-221; R645-103-223 through -225; R645-103-230 through -
240; R645-201-328; R645-201-342; R645-300-133; R645-301-115; and R645-
301-411. All changes pertain to Valid Existing Rights.
    We announced receipt of the proposed amendment in the September 30, 
2010, Federal Register (75 FR 60375). 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 
No. UT-1225). We did not hold a public hearing or meeting because no 
one requested one. We did not receive any comments on the amendment 
proposal.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Utah 
proposed revisions to the following rules containing language that is 
the same as or similar to the corresponding sections of the Federal 
regulations. We are approving the amendment.
    R645-100-200, Definition of Valid Existing Rights. Utah proposed to 
adopt the Federal definition of VER nearly verbatim, changing only 
appropriate State references and using the term ``mining and 
reclamation operations'' in place of the Federal ``surface coal mining 
operations.'' These existing terms share similar definitions and 
encompass all of the same activities. This term occurs throughout the 
UAC, including the revisions discussed below. For a complete discussion 
of the changes to the definition of Valid Existing Rights, see our 
December 17, 1999 Federal Register notice (64 FR 70765). Utah's 
proposed VER definition is functionally identical to and no less 
effective than its Federal counterpart.
    R645-103-221 was revised to delete the word ``and'' from the term 
``Valid and Existing Rights.'' This editorial change provides 
consistency for the usage of the term as defined under both Utah and 
Federal rules without altering the provision's meaning or 
effectiveness.
    R645-103-223, Areas Designated by Acts of Congress; Division 
responsibilities. Utah revised this section to add a specific reference 
to Section 522(e)(2) of SMCRA. This is the section of SMCRA which 
prohibits mining on Federal lands within the boundaries of any national 
forest unless the Secretary of Agriculture finds that there are no 
significant recreational, timber, economic, or other values which may 
be incompatible with mining operations. This is the appropriate section 
of SMCRA to reference for ensuring mining is permissible on Federal 
lands in national forests.
    R645-103-224, Areas Designated by Acts of Congress; Areas 
Unsuitable for Coal Mining and Reclamation Operations. As proposed for 
revision, this section and the corresponding Federal regulation at 30 
CFR 761.11 prohibit mining on the same lands designated as unsuitable 
by acts of Congress unless the applicant has VER. Utah proposed to 
adopt Federal counterpart language nearly verbatim for the majority of 
this section. The Custer National Forest is not in Utah and is 
therefore not included, and Utah makes appropriate references to the 
UAC where Federal regulations reference 30 CFR. All references have 
been cross-checked and verified to be appropriate. Rather than adopt 
counterpart language to 30 CFR 761.12, Utah references it under 
proposed R645-103-225. Because Utah incorporates the Federal 
requirements by reference, this part is no less effective than its 
Federal counterpart. Utah's proposed R645-103-224 and 645-103-225 are 
substantively identical to 30 CFR 761.11 and 761.12.
    R645-103-230 through 233, Areas Designated by Acts of Congress, 
Procedures. Utah proposed amendments to this subsection to be the same 
as its Federal counterpart (30 CFR 761.17), with appropriate references 
to the UAC rather than 30 CFR. All references have been cross-checked 
and verified to be appropriate. Utah references 30 CFR 761.16 for 
determining State and Federal responsibilities for VER determinations, 
establishing application requirements, evaluation procedures and 
decision making criteria, providing public participation and 
notification of affected parties, and establishing requirements for the 
availability of records. This is the correct reference to the CFR for 
the listed procedures and requirements. By employing the Federal 
regulation, Utah ensures this part is no less effective than the 
Federal counterpart. All proposed changes to this part alter the 
provision to more closely mirror Federal counterpart language.
    R645-103-234, Procedures for relocating a public road or waiving 
the prohibition on coal mining and reclamation operations within the 
buffer zone of a public road. Utah proposed to adopt Federal language 
into the UAC with appropriate reference changes to the UAC and minor 
editorial changes to reflect the State program. All references have 
been cross-checked and verified to be appropriate. Utah is adopting all 
of the same requirements for relocating or closing public roads and 
waiving the prohibition on coal mining and reclamation operations 
within the buffer zone of a public road as the Federal program. This 
provision is substantively identical to its Federal counterpart.
    R645-103-235, Procedures for waiving the prohibition on coal mining 
and reclamation operations within the buffer zone of an occupied 
dwelling.

[[Page 9809]]

Utah proposed Federal language to be adopted under the UAC, with 
appropriate reference changes. This language indicates that procedures 
for waiving the prohibition on coal mining and reclamation operations 
within the buffer zone of an occupied dwelling do not apply to lands 
for which a person has VER, existing operations which have been granted 
an exception, or roads that connect to an existing public road on the 
opposite side of the dwelling. Minor recodification changes were 
necessary as a result of new language added. Recodification changes do 
not alter the meaning or effectiveness of the provision. Utah also 
incorporates minor wording changes to mirror Federal counterpart 
language.
    R645-103-236, Procedures where operations will adversely affect any 
publicly owned park or any place included in the National Register of 
Historic Places. Utah proposed additional text stipulating the 
procedures for joint regulatory approval of permits which would 
adversely affect publicly owned parks or historic places. The proposed 
text directly mirrors counterpart Federal language with appropriate 
reference changes to UAC rather than 30 CFR. All references have been 
cross-checked and verified to be appropriate. This subsection is 
substantively identical to its Federal counterpart.
    R645-103-237 through -238, Procedures for applicants intending to 
conduct operations on Federal lands within a national forest. Utah 
proposed language directly corresponding to the counterpart Federal 
provision (30 CFR 761.13). Minor differences in wording reflect the 
state program and do not detract from the provision's meaning or 
effectiveness. Appropriate reference changes to UAC rather than 30 CFR 
have been made. Utah references the Federal definition of ``significant 
recreational, timber, economic, or other values incompatible with 
surface coal mining operations'' at 30 CFR 761.5. Referencing the 
Federal definition ensures that the term is as inclusive as the Federal 
term. This provision is substantively identical to its Federal 
counterpart. A minor recodification change was necessary as a result of 
the new language added. Recodification changes do not alter the meaning 
or effectiveness of the provision.
    R645-103-239, Administrative and judicial review of VER 
determinations. Utah proposed to delete language referring to coal 
mining and reclamation operations existing on the date of enactment of 
the coal regulatory program. This deletion reflects a fundamental 
change made to the Federal program on December 17, 1999 (64 FR 70766). 
OSM deleted the requirement that VER must be determined based on 
property rights and other conditions as they existed on August 3, 1977, 
from the Federal program. OSM did this because SMCRA section 522(e) 
neither defines VER nor specifies that VER must be determined on the 
basis of property rights as they existed on the date of enactment. 
Because the lands and features protected by 30 CFR 761.11 and SMCRA 
522(e) are continually changing, OSM believed VER should be determined 
on the basis of property rights and circumstances that exist at the 
time that lands come under the protection of 522(e) and 30 CFR 761.11. 
This revision makes the provision substantively identical to its 
Federal counterpart (30 CFR 761.16(f)).
    R645-103-240, Interpretive rule, subsidence due to underground 
mining. Proposed additional language indicates that subsidence due to 
underground mining is not included in the definition of surface coal 
mining and reclamation operations and is therefore not prohibited in 
areas protected under SMCRA 522(e). Proposed language directly 
corresponds to 30 CFR 761.200. Therefore, its inclusion does not 
conflict with, and is no less effective than, the Federal program.
    R645-201-328, Major coal exploration permits, minimizing 
interference with the values for which lands were designated unsuitable 
for coal mining and reclamation operations. Utah proposed new language 
directly corresponding to 30 CFR 772.12(14). This provision requires 
applicants to demonstrate that exploration activities have been 
designed to minimize interference with the values for which the land 
was designated unsuitable for coal mining and reclamation operations. 
The provision also requires documentation of landowner/agency 
consultation. New language is substantively identical to its Federal 
counterpart.
    R645-201-342, Major coal exploration permits, written findings 
required for Division approval of applications. Utah proposed new 
language directly corresponding to 30 CFR 772.12(d)(2)(iv). This part 
requires the Division to find, in writing, that exploration activities 
on lands protected under R645-103-224 will minimize interference with 
the values for which those lands have been designated as unsuitable for 
coal mining and reclamation operations. Before making the finding, the 
Division must provide a reasonable opportunity for the landowner or 
agency with primary jurisdiction over the feature to comment on whether 
the finding is appropriate. Proposed language directly mirrors its 
Federal counterpart, with appropriate changes for the State program. 
Additional changes to existing language under R645-201-342 make the 
provision mirror its Federal counterpart more closely.
    R645-300-133, Written findings for permit application approval. 
Utah proposed minor wording changes to more closely mirror Federal 
counterpart language and to add additional language containing permit 
application requirements for remining operations. Utah references its 
range of permit eligibility regulations at R645-300-100 through R645-
300-132.300, corresponding to 30 CFR 773.7 through 773.14. These 
Federal regulations have been revised as a result of OSM's Ownership 
and Control rule changes. Utah was notified of the need to revise these 
provisions by letter dated October 2, 2009 (Administrative Record No. 
UT-1226). We are currently processing Utah's proposed Ownership and 
Control rule changes under SATS No. UT-049-FOR. That amendment package 
can be found in Docket No. OSM-2012-0015.
    Because Utah has formally proposed revisions to address the 
identified problems with the referenced provisions, we have found the 
proposed changes to R645-300-133 to be no less effective than the 
Federal program.
    R645-301-115, Status of unsuitability claims, operations within 300 
feet of an occupied dwelling or 100 feet of a public road. Utah 
proposes editorial changes to adopt language more similar to its 
Federal counterpart. Reference changes were necessary due to other 
revisions and recodifications. All references correspond to references 
made in 30 CFR and are appropriate.
    R645-301-411, Environmental description. Utah proposed to add a 
reference to its VER determination rule at R645-103-231. This is the 
appropriate reference.
    Because these proposed rules contain language that is the same as 
or similar to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations and 
approve them. Utah has now satisfied all required rule changes 
identified in our February 1, 2008, and September 19, 2000, letters.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record Document ID No. UT-1225;

[[Page 9810]]

Regulations.gov Document ID OSM-2010-0012-0001), 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 No. UT-1227). We did not receive any responses to our request.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(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 pertains to air or water quality standards. Therefore, we did 
not ask EPA to concur with the amendment. Under 30 CFR 
732.17(h)(11)(i), we are required to solicit and publicly disclose EPA 
comments. On September 19, 2011, we requested EPA comments on this 
amendment (Administrative record No. UT-1229). The EPA did not respond 
to our request.

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 September 3, 2010, we requested ACHP comments on Utah's 
amendment (Administrative Record No. UT-1227). On September 19, 2011, 
we requested SHPO comments on Utah's amendment (Administrative Record 
No. UT-1228). Neither the ACHP nor the SHPO responded to our request.

V. OSM's Decision

    Based on the above findings, we approve Utah's August 9, 2010, 
amendment.
    We approve 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.
    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 State program is approved by the 
Secretary. 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 regulations at 30 CFR 732.17(g) prohibit any 
changes to approved State programs that are not approved by OSM. In the 
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 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 CFR 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) et seq.).

[[Page 9811]]

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. 
3501 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 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. 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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), of 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.
    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 upon the fact that the State submittal 
which is the subject of this rule is based upon 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 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon 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 19, 2012.
Allen D. Klein,
Regional Director, Western Region.
    For the reasons set out in the preamble, 30 CFR part 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.

* * * * *

 
------------------------------------------------------------------------
 Original amendment submission    Date of final
              date                 publication     Citation/Description
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                              * * * * * * *
August 9, 2010.................     February 12,  R645-100-200
                                            2013   Definition of Valid
                                                   Existing Rights; R645-
                                                   103-221; R645-103-
                                                   223; R645-103-224;
                                                   R645-103-225; R645-
                                                   103-230 through -240;
                                                   645-201-328; 645-201-
                                                   342; 645-300-133; 645-
                                                   301-115; 645-301-411
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[FR Doc. 2013-03054 Filed 2-11-13; 8:45 am]
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