Utah Regulatory Program, 33249-33254 [E6-8927]

Download as PDF Federal Register / Vol. 71, No. 110 / Thursday, June 8, 2006 / Rules and Regulations Dated: April 12, 2006. Leonard Meier, Acting Regional Director, Mid-Continent Region. PART 925—MISSOURI 1. The authority citation for part 925 continues to read as follows: I For the reasons set out in the preamble, 30 CFR part 925 is amended as set forth below: Authority: 30 U.S.C. 1201 et seq. I 2. Section 925.15 is amended in the table by adding a new entry in I 33249 chronological order by ‘‘Date of final publication’’ to read as follows: § 925.15 Approval of Missouri regulatory program amendments. * * * * * Original amendment submission date Date of final publication Citation/description * October 31, 2005 ...... * June 8, 2006 ............. * * * * * 10 CSR 40–7.011(1)(C) and (D), (2)(A) and (B), (3)(C), (4) and (5), (6)(A)6., 8., & 9., (6)(B)1., 2., & 4. through 7., (6)(C)1. through 4., 8. & 9., (6)(D)1.F., 2., 2.B., 2.D.(I) through (III), 3., 5.C., 6., 8., and (7)(A); 10 CSR 40–7.021(1)(A), (2), (2)(A), (2)(B)3. through 6., (2)(C)2., (2)(D) and (E); 10 CSR 40–7.031(2)(E)1. and 2., (2)(E)2.C. & D., (3)(C), and (4) through (4)(B)2.; and 10 CSR 40–7.041. [FR Doc. E6–8926 Filed 6–7–06; 8:45 am] BILLING CODE 4310–05–P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 944 [UT–043–FOR] Utah Regulatory Program Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Final rule; approval of amendment. AGENCY: cprice-sewell on PROD1PC66 with RULES SUMMARY: We are approving a revised 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 changes to the Utah Administrative Rules concerning permit change, renewal, transfer, sale and assignment, cross sections and maps, processing and approval of extensions to the approved permit area, determining civil penalty amounts, and assessing daily civil penalties. Utah revised its program to clarify and strengthen certain parts of the rules. DATES: Effective Date: June 8, 2006. FOR FURTHER INFORMATION CONTACT: James F. Fulton, Chief, Denver Field Division; telephone: (303) 844–1400, extension 1424; e-mail address: jfulton@osmre.gov. SUPPLEMENTARY INFORMATION: I. Background on the Utah Program II. Submission of the Proposed Amendment III. OSM’s Findings IV. Summary and Disposition of Comments V. OSM’s Decision VI. Procedural Determinations VerDate Aug<31>2005 15:35 Jun 07, 2006 Jkt 208001 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 944.10, 944.15 and 944.30. II. Submission of the Proposed Amendment By letter dated November 28, 2005, Utah sent us an amendment to its program (Administrative Record Number UT–1181) under SMCRA (30 U.S.C. 1201 et seq.). We received the amendment on December 28, 2005. Utah sent the amendment to make the changes at its own initiative. The State proposed to revise five sections of its coal rules. In a revision of Utah Administrative Rule (Utah Admin. R.) 645–301–160, the State proposed to add a heading that reads, ‘‘Permit change, renewal, transfer, sale, and assignment.’’ Following that heading is a proposed reference to procedures to change, renew, transfer, assign, or sell existing coal mining and PO 00000 Frm 00103 Fmt 4700 Sfmt 4700 reclamation permit rights that are found at Utah Admin. R. 645–303. The amendment also proposed to change Utah’s permit application requirements for cross sections and maps at Utah Admin. R. 645–301– 512.100. This change would allow preparation of certain cross sections and maps by a professional geologist or a qualified, registered, professional land surveyor. The State also proposed editorial changes to this section to make it read more clearly with the proposed substantive revisions described above. A proposed revision to Utah Admin. R. 645–303–222 would require applications for extensions to the approved permit area to be processed and approved using the procedural requirements of Utah Admin. R. 645– 303–226 for review and processing of significant permit revisions. As part of this proposed change, the State also proposed to remove the requirement at Utah Admin. R. 645–303–222 that extensions to the approved permit area, except for incidental boundary changes, be processed and approved as new permit applications and not be approved under Utah Admin. R. 645– 303–221 through R. 645–303–228. Another revision proposed in this amendment would change Utah’s schedule of points and corresponding dollar amounts for civil penalty assessments found at Utah Admin. R. 645–401–330. The proposed revision changed the range of civil monetary penalties from $10 through $3,560 to $22 through $4,840. It also changed the range of assessed points corresponding to those civil monetary penalties from 1 through 87 points to 1 through 64 points. Finally, the State’s amendment proposed a change at Utah Admin. R. 645–401–410 that would require an assessment officer to assess a civil penalty for a minimum of two separate E:\FR\FM\08JNR1.SGM 08JNR1 33250 Federal Register / Vol. 71, No. 110 / Thursday, June 8, 2006 / Rules and Regulations cprice-sewell on PROD1PC66 with RULES days for any violation that continues for two or more days and is assigned more than 64 points. This proposed change also would remove the existing threshold of 80 points. We announced receipt of the proposed amendment in the February 13, 2006, Federal Register (71 FR 7489; Administrative Record Number UT– 1192). 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. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on March 15, 2006. We received comments from two Federal agencies. We identified a concern about proposed Utah Admin. R. 645–303–222 during our review of the amendment. As proposed, the rule would require the Division of Oil, Gas and Mining (DOGM) to process and approve applications for permit area extensions, except incidental boundary revisions, using the procedural requirements for permit revisions at Utah Admin. R. 645– 303–226. The amendment would remove the existing requirement that DOGM process and approve permit area extensions, except incidental boundary revisions, through applications for new permits. The proposed rule is not consistent with Utah Code Annotated (UCA) section 40–10–12(1)(c), which requires permit area extensions, except incidental boundary revisions, to be made by application for another permit. We notified Utah of our concern in a telephone conversation on January 23, 2006 (Administrative Record Number UT–1190), and an e-mail message dated February 14, 2006 (Administrative Record Number UT–1193). Utah responded in a letter dated February 16, 2006 (Administrative Record Number UT–1194), by withdrawing the proposed change to Utah Admin. R. 645–303–222 from amendment UT–043–FOR. We did not reopen the public comment period for the revised amendment because Utah’s withdrawal of the proposed change to Utah Admin. R. 645–303–222 only reduced the scope of the amendment and leaves the existing approved rule in effect and unchanged. 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. We are approving the amendment as revised. VerDate Aug<31>2005 15:35 Jun 07, 2006 Jkt 208001 C. Revisions to Utah’s Rules That Are Not the Same as the Corresponding Provisions of the Federal Regulations and Statute Title 40, Chapter 10, et seq., entitled, ‘‘Coal Mining and Reclamation,’’ of the Utah Code Annotated is the primary underlying statutory authority for Utah’s coal mining rules found at Title R645 et seq. UCA 40–10–12(1)(c) states ‘‘[a]ny extensions to the area covered by the permit, except incidental boundary revisions, must be made by application for another permit.’’ This provision is Utah’s statutory counterpart to existing Utah Admin. R. 645–303–222. As proposed, Utah Admin. R. 645– 303–222 is not consistent with the plain wording of State law at UCA 40–10– 12(1)(c). We expressed our concern in a telephone conversation with Utah on January 23, 2006 (Administrative Record Number UT–1190) and in an email message dated February 14, 2006 (Administrative Record Number UT– 1193). In a letter dated February 16, 2006, (Administrative Record Number UT–1194), the State chose to withdraw this proposed rule from the amendment, recognizing the need to revise the Utah Code Annotated. Withdrawal of the proposed change to Utah Admin. R. 645–303–222 from amendment UT–043FOR leaves the existing, approved rule unchanged and in effect, notwithstanding the Board of Oil, Gas and Mining’s formal promulgation of the revised rule effective February 6, 2004 (noted in a January 5, 2006, telephone conversation; Administrative Record Number UT–1186). As originally submitted with this amendment, proposed Utah Admin. R. 645–303–222 is not part of the approved Utah regulatory program. 1. Utah Admin. R. 645–303–222, Review and Approval of Extensions to the Approved Permit Area 2. Utah Admin. R. 645–401–330, Point System for Penalties and Determination of Civil Penalty Amounts Proposed Utah Admin. R. 645–303– 222 would require DOGM to process and approve permit area extensions (except incidental boundary changes) using procedures for significant permit revisions found at Utah Admin. R. 645– 303–226. The proposed revision also would remove the existing requirement that DOGM process permit area extensions (except incidental boundary changes) through applications for new permits and not under the procedures for permit changes found at Utah Admin. R. 645–303–221 through R. 645–303–228. Federal counterparts to existing Utah Admin. R. 645–303–222 are found at section 511(a)(3) of SMCRA and in the Federal regulations at 30 CFR 774.13(d). Both Federal provisions require permit area extensions, except incidental boundary revisions, to be processed as applications for new permits. Utah proposed to revise its point system for civil penalties at Utah Admin. R. 645–401–330. The State’s approved system assesses from 1 to 100 points for violations and assigns corresponding civil monetary penalties of $10 to $3,560 to each number in that range of points. The maximum monetary penalty is reached at the 87 points level and corresponds to assessed totals of 87 to 100 points, as indicated by a ‘‘plus’’ (+) after the number 87. This amendment would change the assessed point total at which the maximum penalty is reached from 87 to 64 points and would increase most civil monetary penalties, with a maximum penalty of $4,840 reached at 64 points. The amendment also would remove the ‘‘plus’’ (+), leaving the 64 points level corresponding to the maximum penalty without specifically indicating what penalty or penalties would correspond A. Minor Revision to Utah’s Rules Utah proposed a minor editorial change to the following previouslyapproved rule by adding a new heading and rule at Utah Admin. R. 645–301– 160. The new rule is an editorial addition that merely restates the heading of Utah Admin. R. 645–303 and directs the reader to existing rules for permit change, renewal, transfer, sale and assignment that are in that section. Because this change is minor, we find that it will not make Utah’s rules less effective than the corresponding Federal regulations. B. Revisions to Utah’s Rules That Have the Same Meaning as the Corresponding Provisions of the Federal Regulations Utah proposed revisions to the following rule containing language that is the same as or similar to the corresponding sections of the Federal regulations: Utah Admin. R. 645–301–512.100, preparation and certification of certain cross sections and maps required in permit applications (corresponds to 30 CFR 780.14(c) and 784.23(c) in the Federal regulations). Because this proposed rule contains language that is the same as or similar to the corresponding Federal regulations, we find that it is no less effective than the corresponding Federal regulations. PO 00000 Frm 00104 Fmt 4700 Sfmt 4700 E:\FR\FM\08JNR1.SGM 08JNR1 Federal Register / Vol. 71, No. 110 / Thursday, June 8, 2006 / Rules and Regulations to assessments totaling 65 through 100 points. The counterpart Federal regulation at 30 CFR 845.14 prescribes a very similar civil penalty point system, though the range of points and penalty amounts differ somewhat. That regulation assigns a maximum penalty of $6,500 to the assessed total of 70 points and does not specifically indicate penalty amounts that correspond to assessments totaling 71 points through the maximum possible total of 85 points. We increased the civil monetary penalties in this regulation most recently on November 22, 2005 (70 FR 70698), as required by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461) as amended by the Debt Collection Improvement Act of 1996 (31 U.S.C. 3701). The civil penalty point system in Utah’s proposed rule need not be the same as the counterpart Federal civil penalty point system. In the November 22, 2005, Federal Register (Id., at 70699), we said— [s]ection 518(i) of SMCRA requires that the civil penalty provisions of each State program contain penalties which are ‘no less stringent than’ those set forth in SMCRA. Our regulations at 30 CFR 840.13(a) specify that each State program shall contain penalties which are no less stringent than those set forth in section 518 of the Act and shall be consistent with 30 CFR part 845. However, in a 1980 decision on OSM’s regulations governing [civil monetary penalties], the U.S. District Court for the District of Columbia held that because section 518 of SMCRA fails to enumerate a point system for assessing civil penalties, the imposition of this requirement upon the States is inconsistent with SMCRA. In response to the Secretary’s request for clarification, the Court further stated that it could not uphold requiring the States to impose penalties as stringent as those appearing in 30 CFR 845.15. Consequently, we cannot require that the [civil monetary penalty] provisions contained in a State’s regulatory program mirror the penalty provisions of our regulations at 30 CFR 845.14 and 845.15. cprice-sewell on PROD1PC66 with RULES In a similar discussion of civil penalty point systems in the December 15, 1980, Federal Register, we added that, in the same 1980 decision (In re: Permanent Surface Mining Regulations Litigation, Civil Action No. 79–114, May 16, 1980; ‘‘round 2’’) the Court said— [S]tates need only develop a penalty system incorporating the four criteria in Section 518(a) of SMCRA, the procedural requirements of 30 CFR 845.17 through 845.20, the requirement of 845.12 that all cessation orders must be assessed, and the requirement of 845.15(b) that a minimum of $750.00 per day be assessed for all cessation orders issued for failure to abate a violation. The four criteria of section 518(a) of SMCRA for determining penalty VerDate Aug<31>2005 15:35 Jun 07, 2006 Jkt 208001 amounts are history of previous violations, seriousness of a violation, negligence, and demonstrated good faith. Utah proposed to change its existing civil penalty point system and increase most penalty amounts in this amendment, not remove them. Its previously approved procedures for assessing violations remain otherwise unchanged, including the four assessment components of history, seriousness, negligence, and good faith and requirements for cessation order assessments and daily penalties for failure to abate cessation orders. As such, the proposed rule meets the objective of civil penalties as stated in 30 CFR 845.2, which is to ‘‘deter violations and to ensure maximum compliance with the terms and purposes of [SMCRA] on the part of the coal mining industry.’’ We therefore find that the civil penalty provisions proposed in this amendment at Utah Admin. R. 645–401–330 are no less stringent than those set forth in section 518 of SMCRA and are consistent with 30 CFR part 845. 3. Utah Admin. R. 645–401–410, Assessing Daily Civil Penalties Proposed Utah Admin. R. 645–401– 410 would require DOGM to assess a civil penalty for a minimum of two separate days for any violation that continues for two or more days and is assigned more than 64 points, instead of the existing 80 points. This proposed change would make the rule consistent with changes at Utah Admin. R. 645– 401–330 that also are proposed in this amendment. As described in the previous finding, one change the State also proposed at Utah Admin. R. 645– 401–330 would reduce the assessed total of points at which it imposes the maximum civil monetary penalty from 87 points to 64 points. The wording of proposed Utah Admin. R. 645–401–410 is very similar to the Federal counterpart regulation at 30 CFR 845.15. Utah’s rule refers to factors listed in Utah Admin. R. 645– 301–300 that an assessment officer considers when assessing daily civil penalties, including history of violations, seriousness, negligence, and good faith. It also requires consideration of the extent to which the permittee gained any economic benefit by not complying and assessing civil penalties for violations assigned more than 64 points. The primary differences are the proposed State rule’s references to other State rules and the threshold assessed total of 64 points. Referenced Utah Admin. R. 645–401–300 and 645–401– 320 are Utah’s rules for its civil penalty PO 00000 Frm 00105 Fmt 4700 Sfmt 4700 33251 point system and are the State’s counterparts to referenced 30 CFR 845.13 and 845.13(b) in the Federal regulations. Proposed Utah Admin. R. 645–401–410 and counterpart 30 CFR 845.15 set their respective threshold totals of more than 64 and 70 points, as one of two criteria for imposing a civil monetary penalty for at least two separate days. Utah’s proposed rule is very similar to the counterpart Federal regulation and need not be exactly the same. As we observed in the previous finding, we cannot require States’ civil penalty systems to mirror the Federal regulations. Section 518(i) of SMCRA requires that the civil penalty provisions of each State program contain penalties that are no less stringent than those set forth in SMCRA. Utah proposed in this amendment to revise its existing civil penalty point system, not remove it. Its previously approved procedures for assessing violations remain otherwise unchanged. The proposed rule meets the objective of civil penalties as stated in 30 CFR 845.2, which is to ‘‘deter violations and to ensure maximum compliance with the terms and purposes of [SMCRA] on the part of the coal mining industry.’’ Therefore, we find the civil penalty provision proposed at Utah Admin. R. 645–401– 410 is no less stringent than section 518(i) of SMCRA and is consistent with 30 CFR part 845. IV. Summary and Disposition of Comments Public Comments We asked for public comments on the amendment (Administrative Record Number UT–1185), 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– 1185). The Utah State Office of the U.S. Department of the Interior, Bureau of Land Management (BLM), submitted comments on the amendment in a letter dated January 20, 2006 (Administrative Record Number UT–1188). BLM commented on Utah’s proposed changes to Utah Admin. R. 645–301–512.100 and 645–401–330. Concerning proposed Utah Admin. R. 645–301–512.100, BLM commented that it has found it expedient to require all but geologic materials to be certified by a professional mining engineer E:\FR\FM\08JNR1.SGM 08JNR1 33252 Federal Register / Vol. 71, No. 110 / Thursday, June 8, 2006 / Rules and Regulations registered in Utah, noting that such engineers typically are in managerial positions at mining operations. It added that Utah requires experience and testing to demonstrate competence unique to the mining field that someone trained in civil, mechanical, or other engineering or scientific disciplines might not have. BLM also commented that it only accepts certifications by professional land surveyors of materials for land ownership or mine locations, noting that such surveyors typically are not qualified by training or experience and are not licensed to certify miningrelated or geologic materials. Proposed Utah Admin. R. 645–301– 512.100 would allow certain cross sections and maps to be prepared by, or under the direction of, and certified by, qualified, registered, professional engineers, professional geologists, or qualified, registered, professional land surveyors with assistance from experts in related fields such as hydrology, geology and landscape architecture. Black’s Law Dictionary (7th Ed.; 1999) defines ‘‘qualified’’ as 1. Possessing the necessary qualifications; capable or competent * * *. Black’s Law Dictionary defines ‘‘qualification’’ as cprice-sewell on PROD1PC66 with RULES 1. The possession of qualities or properties (such as fitness or capacity) inherently or legally necessary to make one eligible for a position or office, or to perform a public duty or function * * *. The proposed rule specifically requires registered, professional land surveyors who would prepare or direct the preparation of, and certify, certain cross sections and maps to be ‘‘qualified’’ to do those functions and to do them with assistance from experts in related fields such as hydrology, geology and landscape architecture. In context of the proposed rule and the definitions quoted above, qualified, registered professional land surveyors would be capable or competent individuals who, with expert assistance, have the capacity and are fit to prepare or direct the preparation of, and certify, certain cross sections and maps. Further, as we stated in finding III. B. of this final rule, Utah’s proposed rule contains language that is the same as or similar to the language of the corresponding Federal regulation at 30 CFR 780.14(c) and 784.23(c). Those Federal regulations allow qualified, registered, professional land surveyors to prepare or direct the preparation of, and certify, certain cross sections and maps in any State that authorizes them to do so with assistance from experts in related fields such as landscape architecture. We assume that, by VerDate Aug<31>2005 15:35 Jun 07, 2006 Jkt 208001 proposing Utah Admin. R. 645–303– 512.100, Utah is authorizing qualified, registered, professional land surveyors to perform these functions with appropriate expert assistance in accordance with all applicable State standards for professional qualifications and conduct. Moreover, the standard we use for review of Utah’s program is that it be no less effective than the Federal regulations and no less stringent than SMCRA. In finding III.B of this final rule, we found proposed Utah Admin. R. 645–303–512.100 to be no less effective than the counterpart Federal regulations at 30 CFR 780.14(c) and 784.23(c) because it is worded the same as or similar to those regulations. We cannot require Utah to have rules that are more effective than the Federal regulations or more stringent than SMCRA. With regard to proposed Utah Admin. R. 645–401–330, BLM’s comment assumed the proposed increases in civil penalties reflect inflationary factors and noted that it otherwise had no specific comments except to say that the increased civil monetary penalties will have some minimal effect ‘‘on the viability of certain coal energy resources and will probably be borne by the end consumers of energy.’’ As we state below in the Procedural Determinations in Section VI of this final rule, a Statement of Energy Effects is not required for this rule under Executive Order 13211—Regulations That Significantly Affect The Supply, Distribution, or Use of Energy because it is not expected to have a significant adverse effect on the supply, distribution, or use of energy. Further, as we noted previously in our finding at Part III.C.2. in this final rule, section 518(i) of SMCRA requires each State program to have civil penalty provisions that are no less stringent than those in SMCRA. The Federal regulations at 30 CFR 840.13(a) further specify that each State program must have penalties that are no less stringent than those in section 518 of SMCRA and that are consistent with 30 CFR part 845. As proposed at Utah Admin. R. 645–401– 330 in this amendment, we find Utah’s civil monetary penalties are no less stringent than those set forth in section 518 of SMCRA and are consistent with 30 CFR part 845. We also received a comment from the Intermountain Region of the U.S. Department of Agriculture, Forest Service, in an e-mail message dated February 1, 2006 (Administrative Record Number UT–1191). The Forest Service commented that it supported the changes proposed in UT–043–FOR, noting that they appear to be positive PO 00000 Frm 00106 Fmt 4700 Sfmt 4700 improvements to the State’s rules. It also supported the proposed rule (Utah Admin. R. 645–301–512.100) that would allow a professional geologist to certify certain cross sections and maps, and said it assumed the proposed change is tied to Utah’s new process for certifying professional geologists. We assume that, by proposing Utah Admin. R. 645–303– 512.100, Utah is authorizing professional geologists to prepare, direct the preparation of, and certify certain cross sections and maps in accordance with all applicable State standards for professional qualifications and conduct. As noted in finding III.B. of this final rule, we find proposed Utah Admin. R. 645–301–512.100 is no less effective than counterpart 30 CFR 780.14(c) and 784.23(c) because it contains language that is the same as or similar to the language of those corresponding Federal regulations. 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 pertains to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, we asked EPA for its comments on the amendment under 30 CFR 732.17(h)(11)(i) (Administrative Record Number UT–1183). 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 January 4, 2006, we requested the ACHP’s comments on Utah’s amendment (Administrative Record Number UT–1184). We requested the SHPO’s comments in a letter dated January 25, 2006 (Administrative Record Number UT– 1189). Neither the ACHP nor the SHPO responded to our requests. V. OSM’s Decision Based on the above findings, we approve Utah’s November 28, 2005, amendment, as revised on February 16, 2006. To implement this decision, we are amending the Federal regulations at 30 E:\FR\FM\08JNR1.SGM 08JNR1 Federal Register / Vol. 71, No. 110 / Thursday, June 8, 2006 / Rules and Regulations 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. 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 regulation at 30 CFR 732.17(g) prohibits 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 regulations. 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). cprice-sewell on PROD1PC66 with RULES 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 VerDate Aug<31>2005 15:35 Jun 07, 2006 Jkt 208001 33253 its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). 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. 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.). 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 Federallyrecognized 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 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute PO 00000 Frm 00107 Fmt 4700 Sfmt 4700 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 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), 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; 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 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 E:\FR\FM\08JNR1.SGM 08JNR1 33254 Federal Register / Vol. 71, No. 110 / Thursday, June 8, 2006 / Rules and Regulations determination made that the Federal regulation did not impose an unfunded mandate. Dated: April 27, 2006. Allen D. Klein, Regional Director, Western Region. List of Subjects in 30 CFR Part 944 I For the reasons set out in the preamble, 30 CFR part 944 is amended as set forth below: 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: PART 944—UTAH § 944.15 Approval of Utah regulatory program amendments 1. The authority citation for part 944 continues to read as follows: * Intergovernmental relations, Surface mining, Underground mining. Authority: 30 U.S.C. 1201 et seq. I I Original amendment submission date * November 28, 2005 and February 16, 2006. Date of final publication * * * * Citation/description * June 8, 2006. ............ * * * * Utah Adm. R. 645–301–160, 645–301–512.100, 645–401–330, and 645–401–400. * informed about the procedures governing the Access Board. DEPARTMENT OF HOMELAND SECURITY List of Subjects in 36 CFR Part 1151 Transportation Security Administration ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD Authority delegations (Government agencies), Organization and functions (Government agencies). 49 CFR Part 1548 36 CFR Part 1151 Authorized by vote of the Access Board on March 15, 2006. David L. Bibb, Chairperson, Architectural and Transportation Barriers Compliance Board. [FR Doc. E6–8927 Filed 6–7–06; 8:45 am] BILLING CODE 4310–05–P Bylaws Architectural and Transportation Barriers Compliance Board. ACTION: Final rule. AGENCY: Pursuant to 29 U.S.C. 792, as amended, and for the reasons set forth in the preamble, chapter XI of title 36 of the Code of Federal Regulations is amended as follows: I SUMMARY: The Architectural and Transportation Barriers Compliance Board (Access Board) has adopted an amendment to its bylaws. The amendment was adopted to update and improve the Board’s operations. DATES: This rule is effective June 8, 2006. Lisa Fairhall, Access Board, 1331 F Street, NW., Suite 1000, Washington, DC 20004–1111. Telephone number 202– 272–0046 (voice); 202–272–0082 (TTY). E-mail address: Fairhall@accessboard.gov. PART 1151—BYLAWS 1. The authority citation for part 1151 continues to read as follows: I Authority: 29 U.S.C. 792. FOR FURTHER INFORMATION CONTACT: In March 2006, the Access Board amended its bylaws to codify its practice of electing Vice-Chairs for subject matter committees. This amendment was adopted to update and improve the Board’s operating procedures. Because the amendment is to the Board’s internal rules of organization, procedure, or practice, advance notice and opportunity for public comment are not required by the Administrative Procedures Act (section 553(b)). The amendment is being published so that all interested persons will be fully cprice-sewell on PROD1PC66 with RULES SUPPLEMENTARY INFORMATION: VerDate Aug<31>2005 18:00 Jun 07, 2006 Jkt 208001 2. Revise paragraph (b)(2) of § 1151.6 to read as follows: I § 1151.6 Committees. * * * * * (b) * * * (2) Chair, Vice-Chair. The Chair and Vice-Chair of a subject matter committee shall be elected by the Board after the election of the Chair and Vice-Chair of the Board. The Chair of a subject matter committee shall serve as a member of the Board’s Executive Committee. * * * * * [FR Doc. E6–8887 Filed 6–7–06; 8:45 am] BILLING CODE 8150–01–P PO 00000 Frm 00108 Fmt 4700 Sfmt 4700 [Docket No. TSA–2004–19515; Amendment Nos. 1548–2] RIN 1652–AA23 Air Cargo Security Requirements; Correction Transportation Security Administration (TSA), DHS. ACTION: Final rule; correction. AGENCY: SUMMARY: This document makes a correction to the final rule published in the Federal Register on May 26, 2006. That rule enhances and improves the security of air cargo transportation by requiring airport operators, aircraft operators, foreign air carriers, and indirect air carriers to implement security measures in the air cargo supply chain as directed under the Aviation and Transportation Security Act. The final rule also amends the applicability of the requirement for a ‘‘twelve-five’’ security program for aircraft with a maximum certificated takeoff weight of 12,500 pounds or more to those aircraft with a maximum certificated takeoff weight of more than 12,500 pounds to conform to recent legislation. TSA inadvertently left out the amendatory instruction to remove the word ‘‘passenger’’ in § 1548.1. This document adds this amendatory change to part 1548. DATES: Effective October 23, 2006. FOR FURTHER INFORMATION CONTACT: Tamika McCree, Office of Transportation Sector Network Management (TSA–28), Transportation Security Administration, 601 South E:\FR\FM\08JNR1.SGM 08JNR1

Agencies

[Federal Register Volume 71, Number 110 (Thursday, June 8, 2006)]
[Rules and Regulations]
[Pages 33249-33254]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-8927]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944

[UT-043-FOR]

Utah Regulatory Program

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

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: We are approving a revised 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 changes to
the Utah Administrative Rules concerning permit change, renewal,
transfer, sale and assignment, cross sections and maps, processing and
approval of extensions to the approved permit area, determining civil
penalty amounts, and assessing daily civil penalties. Utah revised its
program to clarify and strengthen certain parts of the rules.

DATES: Effective Date: June 8, 2006.

FOR FURTHER INFORMATION CONTACT: James F. Fulton, Chief, Denver Field
Division; telephone: (303) 844-1400, extension 1424; e-mail address:
jfulton@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program
II. Submission of the Proposed Amendment
III. 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 also can find later actions concerning Utah's program
and program amendments at 30 CFR 944.10, 944.15 and 944.30.

II. Submission of the Proposed Amendment

By letter dated November 28, 2005, Utah sent us an amendment to its
program (Administrative Record Number UT-1181) under SMCRA (30 U.S.C.
1201 et seq.). We received the amendment on December 28, 2005. Utah
sent the amendment to make the changes at its own initiative. The State
proposed to revise five sections of its coal rules.
In a revision of Utah Administrative Rule (Utah Admin. R.) 645-301-
160, the State proposed to add a heading that reads, ``Permit change,
renewal, transfer, sale, and assignment.'' Following that heading is a
proposed reference to procedures to change, renew, transfer, assign, or
sell existing coal mining and reclamation permit rights that are found
at Utah Admin. R. 645-303.
The amendment also proposed to change Utah's permit application
requirements for cross sections and maps at Utah Admin. R. 645-301-
512.100. This change would allow preparation of certain cross sections
and maps by a professional geologist or a qualified, registered,
professional land surveyor. The State also proposed editorial changes
to this section to make it read more clearly with the proposed
substantive revisions described above.
A proposed revision to Utah Admin. R. 645-303-222 would require
applications for extensions to the approved permit area to be processed
and approved using the procedural requirements of Utah Admin. R. 645-
303-226 for review and processing of significant permit revisions. As
part of this proposed change, the State also proposed to remove the
requirement at Utah Admin. R. 645-303-222 that extensions to the
approved permit area, except for incidental boundary changes, be
processed and approved as new permit applications and not be approved
under Utah Admin. R. 645-303-221 through R. 645-303-228.
Another revision proposed in this amendment would change Utah's
schedule of points and corresponding dollar amounts for civil penalty
assessments found at Utah Admin. R. 645-401-330. The proposed revision
changed the range of civil monetary penalties from $10 through $3,560
to $22 through $4,840. It also changed the range of assessed points
corresponding to those civil monetary penalties from 1 through 87
points to 1 through 64 points.
Finally, the State's amendment proposed a change at Utah Admin. R.
645-401-410 that would require an assessment officer to assess a civil
penalty for a minimum of two separate

[[Page 33250]]

days for any violation that continues for two or more days and is
assigned more than 64 points. This proposed change also would remove
the existing threshold of 80 points.
We announced receipt of the proposed amendment in the February 13,
2006, Federal Register (71 FR 7489; Administrative Record Number UT-
1192). 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. We did not hold a public hearing or meeting
because no one requested one. The public comment period ended on March
15, 2006. We received comments from two Federal agencies.
We identified a concern about proposed Utah Admin. R. 645-303-222
during our review of the amendment. As proposed, the rule would require
the Division of Oil, Gas and Mining (DOGM) to process and approve
applications for permit area extensions, except incidental boundary
revisions, using the procedural requirements for permit revisions at
Utah Admin. R. 645-303-226. The amendment would remove the existing
requirement that DOGM process and approve permit area extensions,
except incidental boundary revisions, through applications for new
permits. The proposed rule is not consistent with Utah Code Annotated
(UCA) section 40-10-12(1)(c), which requires permit area extensions,
except incidental boundary revisions, to be made by application for
another permit. We notified Utah of our concern in a telephone
conversation on January 23, 2006 (Administrative Record Number UT-
1190), and an e-mail message dated February 14, 2006 (Administrative
Record Number UT-1193).
Utah responded in a letter dated February 16, 2006 (Administrative
Record Number UT-1194), by withdrawing the proposed change to Utah
Admin. R. 645-303-222 from amendment UT-043-FOR.
We did not reopen the public comment period for the revised
amendment because Utah's withdrawal of the proposed change to Utah
Admin. R. 645-303-222 only reduced the scope of the amendment and
leaves the existing approved rule in effect and unchanged.

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. We are
approving the amendment as revised.

A. Minor Revision to Utah's Rules

Utah proposed a minor editorial change to the following previously-
approved rule by adding a new heading and rule at Utah Admin. R. 645-
301-160. The new rule is an editorial addition that merely restates the
heading of Utah Admin. R. 645-303 and directs the reader to existing
rules for permit change, renewal, transfer, sale and assignment that
are in that section.
Because this change is minor, we find that it will not make Utah's
rules less effective than the corresponding Federal regulations.

B. Revisions to Utah's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations

Utah proposed revisions to the following rule containing language
that is the same as or similar to the corresponding sections of the
Federal regulations:
Utah Admin. R. 645-301-512.100, preparation and certification of
certain cross sections and maps required in permit applications
(corresponds to 30 CFR 780.14(c) and 784.23(c) in the Federal
regulations).
Because this proposed rule contains language that is the same as or
similar to the corresponding Federal regulations, we find that it is no
less effective than the corresponding Federal regulations.

C. Revisions to Utah's Rules That Are Not the Same as the Corresponding
Provisions of the Federal Regulations and Statute

1. Utah Admin. R. 645-303-222, Review and Approval of Extensions to the
Approved Permit Area
Proposed Utah Admin. R. 645-303-222 would require DOGM to process
and approve permit area extensions (except incidental boundary changes)
using procedures for significant permit revisions found at Utah Admin.
R. 645-303-226. The proposed revision also would remove the existing
requirement that DOGM process permit area extensions (except incidental
boundary changes) through applications for new permits and not under
the procedures for permit changes found at Utah Admin. R. 645-303-221
through R. 645-303-228.
Federal counterparts to existing Utah Admin. R. 645-303-222 are
found at section 511(a)(3) of SMCRA and in the Federal regulations at
30 CFR 774.13(d). Both Federal provisions require permit area
extensions, except incidental boundary revisions, to be processed as
applications for new permits.
Title 40, Chapter 10, et seq., entitled, ``Coal Mining and
Reclamation,'' of the Utah Code Annotated is the primary underlying
statutory authority for Utah's coal mining rules found at Title R645 et
seq. UCA 40-10-12(1)(c) states ``[a]ny extensions to the area covered
by the permit, except incidental boundary revisions, must be made by
application for another permit.'' This provision is Utah's statutory
counterpart to existing Utah Admin. R. 645-303-222.
As proposed, Utah Admin. R. 645-303-222 is not consistent with the
plain wording of State law at UCA 40-10-12(1)(c). We expressed our
concern in a telephone conversation with Utah on January 23, 2006
(Administrative Record Number UT-1190) and in an e-mail message dated
February 14, 2006 (Administrative Record Number UT-1193). In a letter
dated February 16, 2006, (Administrative Record Number UT-1194), the
State chose to withdraw this proposed rule from the amendment,
recognizing the need to revise the Utah Code Annotated. Withdrawal of
the proposed change to Utah Admin. R. 645-303-222 from amendment UT-
043-FOR leaves the existing, approved rule unchanged and in effect,
notwithstanding the Board of Oil, Gas and Mining's formal promulgation
of the revised rule effective February 6, 2004 (noted in a January 5,
2006, telephone conversation; Administrative Record Number UT-1186). As
originally submitted with this amendment, proposed Utah Admin. R. 645-
303-222 is not part of the approved Utah regulatory program.
2. Utah Admin. R. 645-401-330, Point System for Penalties and
Determination of Civil Penalty Amounts
Utah proposed to revise its point system for civil penalties at
Utah Admin. R. 645-401-330. The State's approved system assesses from 1
to 100 points for violations and assigns corresponding civil monetary
penalties of $10 to $3,560 to each number in that range of points. The
maximum monetary penalty is reached at the 87 points level and
corresponds to assessed totals of 87 to 100 points, as indicated by a
``plus'' (+) after the number 87. This amendment would change the
assessed point total at which the maximum penalty is reached from 87 to
64 points and would increase most civil monetary penalties, with a
maximum penalty of $4,840 reached at 64 points. The amendment also
would remove the ``plus'' (+), leaving the 64 points level
corresponding to the maximum penalty without specifically indicating
what penalty or penalties would correspond

[[Page 33251]]

to assessments totaling 65 through 100 points.
The counterpart Federal regulation at 30 CFR 845.14 prescribes a
very similar civil penalty point system, though the range of points and
penalty amounts differ somewhat. That regulation assigns a maximum
penalty of $6,500 to the assessed total of 70 points and does not
specifically indicate penalty amounts that correspond to assessments
totaling 71 points through the maximum possible total of 85 points. We
increased the civil monetary penalties in this regulation most recently
on November 22, 2005 (70 FR 70698), as required by the Federal Civil
Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461) as amended
by the Debt Collection Improvement Act of 1996 (31 U.S.C. 3701).
The civil penalty point system in Utah's proposed rule need not be
the same as the counterpart Federal civil penalty point system. In the
November 22, 2005, Federal Register (Id., at 70699), we said--

[s]ection 518(i) of SMCRA requires that the civil penalty provisions
of each State program contain penalties which are `no less stringent
than' those set forth in SMCRA. Our regulations at 30 CFR 840.13(a)
specify that each State program shall contain penalties which are no
less stringent than those set forth in section 518 of the Act and
shall be consistent with 30 CFR part 845. However, in a 1980
decision on OSM's regulations governing [civil monetary penalties],
the U.S. District Court for the District of Columbia held that
because section 518 of SMCRA fails to enumerate a point system for
assessing civil penalties, the imposition of this requirement upon
the States is inconsistent with SMCRA. In response to the
Secretary's request for clarification, the Court further stated that
it could not uphold requiring the States to impose penalties as
stringent as those appearing in 30 CFR 845.15. Consequently, we
cannot require that the [civil monetary penalty] provisions
contained in a State's regulatory program mirror the penalty
provisions of our regulations at 30 CFR 845.14 and 845.15.

In a similar discussion of civil penalty point systems in the
December 15, 1980, Federal Register, we added that, in the same 1980
decision (In re: Permanent Surface Mining Regulations Litigation, Civil
Action No. 79-114, May 16, 1980; ``round 2'') the Court said--

[S]tates need only develop a penalty system incorporating the four
criteria in Section 518(a) of SMCRA, the procedural requirements of
30 CFR 845.17 through 845.20, the requirement of 845.12 that all
cessation orders must be assessed, and the requirement of 845.15(b)
that a minimum of $750.00 per day be assessed for all cessation
orders issued for failure to abate a violation.

The four criteria of section 518(a) of SMCRA for determining
penalty amounts are history of previous violations, seriousness of a
violation, negligence, and demonstrated good faith.
Utah proposed to change its existing civil penalty point system and
increase most penalty amounts in this amendment, not remove them. Its
previously approved procedures for assessing violations remain
otherwise unchanged, including the four assessment components of
history, seriousness, negligence, and good faith and requirements for
cessation order assessments and daily penalties for failure to abate
cessation orders. As such, the proposed rule meets the objective of
civil penalties as stated in 30 CFR 845.2, which is to ``deter
violations and to ensure maximum compliance with the terms and purposes
of [SMCRA] on the part of the coal mining industry.'' We therefore find
that the civil penalty provisions proposed in this amendment at Utah
Admin. R. 645-401-330 are no less stringent than those set forth in
section 518 of SMCRA and are consistent with 30 CFR part 845.
3. Utah Admin. R. 645-401-410, Assessing Daily Civil Penalties
Proposed Utah Admin. R. 645-401-410 would require DOGM to assess a
civil penalty for a minimum of two separate days for any violation that
continues for two or more days and is assigned more than 64 points,
instead of the existing 80 points. This proposed change would make the
rule consistent with changes at Utah Admin. R. 645-401-330 that also
are proposed in this amendment. As described in the previous finding,
one change the State also proposed at Utah Admin. R. 645-401-330 would
reduce the assessed total of points at which it imposes the maximum
civil monetary penalty from 87 points to 64 points.
The wording of proposed Utah Admin. R. 645-401-410 is very similar
to the Federal counterpart regulation at 30 CFR 845.15. Utah's rule
refers to factors listed in Utah Admin. R. 645-301-300 that an
assessment officer considers when assessing daily civil penalties,
including history of violations, seriousness, negligence, and good
faith. It also requires consideration of the extent to which the
permittee gained any economic benefit by not complying and assessing
civil penalties for violations assigned more than 64 points. The
primary differences are the proposed State rule's references to other
State rules and the threshold assessed total of 64 points. Referenced
Utah Admin. R. 645-401-300 and 645-401-320 are Utah's rules for its
civil penalty point system and are the State's counterparts to
referenced 30 CFR 845.13 and 845.13(b) in the Federal regulations.
Proposed Utah Admin. R. 645-401-410 and counterpart 30 CFR 845.15 set
their respective threshold totals of more than 64 and 70 points, as one
of two criteria for imposing a civil monetary penalty for at least two
separate days.
Utah's proposed rule is very similar to the counterpart Federal
regulation and need not be exactly the same. As we observed in the
previous finding, we cannot require States' civil penalty systems to
mirror the Federal regulations. Section 518(i) of SMCRA requires that
the civil penalty provisions of each State program contain penalties
that are no less stringent than those set forth in SMCRA. Utah proposed
in this amendment to revise its existing civil penalty point system,
not remove it. Its previously approved procedures for assessing
violations remain otherwise unchanged. The proposed rule meets the
objective of civil penalties as stated in 30 CFR 845.2, which is to
``deter violations and to ensure maximum compliance with the terms and
purposes of [SMCRA] on the part of the coal mining industry.''
Therefore, we find the civil penalty provision proposed at Utah Admin.
R. 645-401-410 is no less stringent than section 518(i) of SMCRA and is
consistent with 30 CFR part 845.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment (Administrative
Record Number UT-1185), 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-1185).
The Utah State Office of the U.S. Department of the Interior,
Bureau of Land Management (BLM), submitted comments on the amendment in
a letter dated January 20, 2006 (Administrative Record Number UT-1188).
BLM commented on Utah's proposed changes to Utah Admin. R. 645-301-
512.100 and 645-401-330.
Concerning proposed Utah Admin. R. 645-301-512.100, BLM commented
that it has found it expedient to require all but geologic materials to
be certified by a professional mining engineer

[[Page 33252]]

registered in Utah, noting that such engineers typically are in
managerial positions at mining operations. It added that Utah requires
experience and testing to demonstrate competence unique to the mining
field that someone trained in civil, mechanical, or other engineering
or scientific disciplines might not have. BLM also commented that it
only accepts certifications by professional land surveyors of materials
for land ownership or mine locations, noting that such surveyors
typically are not qualified by training or experience and are not
licensed to certify mining-related or geologic materials.
Proposed Utah Admin. R. 645-301-512.100 would allow certain cross
sections and maps to be prepared by, or under the direction of, and
certified by, qualified, registered, professional engineers,
professional geologists, or qualified, registered, professional land
surveyors with assistance from experts in related fields such as
hydrology, geology and landscape architecture. Black's Law Dictionary
(7th Ed.; 1999) defines ``qualified'' as

1. Possessing the necessary qualifications; capable or competent
* * *.

Black's Law Dictionary defines ``qualification'' as

1. The possession of qualities or properties (such as fitness or
capacity) inherently or legally necessary to make one eligible for a
position or office, or to perform a public duty or function * * *.

The proposed rule specifically requires registered, professional
land surveyors who would prepare or direct the preparation of, and
certify, certain cross sections and maps to be ``qualified'' to do
those functions and to do them with assistance from experts in related
fields such as hydrology, geology and landscape architecture. In
context of the proposed rule and the definitions quoted above,
qualified, registered professional land surveyors would be capable or
competent individuals who, with expert assistance, have the capacity
and are fit to prepare or direct the preparation of, and certify,
certain cross sections and maps.
Further, as we stated in finding III. B. of this final rule, Utah's
proposed rule contains language that is the same as or similar to the
language of the corresponding Federal regulation at 30 CFR 780.14(c)
and 784.23(c). Those Federal regulations allow qualified, registered,
professional land surveyors to prepare or direct the preparation of,
and certify, certain cross sections and maps in any State that
authorizes them to do so with assistance from experts in related fields
such as landscape architecture. We assume that, by proposing Utah
Admin. R. 645-303-512.100, Utah is authorizing qualified, registered,
professional land surveyors to perform these functions with appropriate
expert assistance in accordance with all applicable State standards for
professional qualifications and conduct. Moreover, the standard we use
for review of Utah's program is that it be no less effective than the
Federal regulations and no less stringent than SMCRA. In finding III.B
of this final rule, we found proposed Utah Admin. R. 645-303-512.100 to
be no less effective than the counterpart Federal regulations at 30 CFR
780.14(c) and 784.23(c) because it is worded the same as or similar to
those regulations. We cannot require Utah to have rules that are more
effective than the Federal regulations or more stringent than SMCRA.
With regard to proposed Utah Admin. R. 645-401-330, BLM's comment
assumed the proposed increases in civil penalties reflect inflationary
factors and noted that it otherwise had no specific comments except to
say that the increased civil monetary penalties will have some minimal
effect ``on the viability of certain coal energy resources and will
probably be borne by the end consumers of energy.''
As we state below in the Procedural Determinations in Section VI of
this final rule, a Statement of Energy Effects is not required for this
rule under Executive Order 13211--Regulations That Significantly Affect
The Supply, Distribution, or Use of Energy because it is not expected
to have a significant adverse effect on the supply, distribution, or
use of energy. Further, as we noted previously in our finding at Part
III.C.2. in this final rule, section 518(i) of SMCRA requires each
State program to have civil penalty provisions that are no less
stringent than those in SMCRA. The Federal regulations at 30 CFR
840.13(a) further specify that each State program must have penalties
that are no less stringent than those in section 518 of SMCRA and that
are consistent with 30 CFR part 845. As proposed at Utah Admin. R. 645-
401-330 in this amendment, we find Utah's civil monetary penalties are
no less stringent than those set forth in section 518 of SMCRA and are
consistent with 30 CFR part 845.
We also received a comment from the Intermountain Region of the
U.S. Department of Agriculture, Forest Service, in an e-mail message
dated February 1, 2006 (Administrative Record Number UT-1191). The
Forest Service commented that it supported the changes proposed in UT-
043-FOR, noting that they appear to be positive improvements to the
State's rules. It also supported the proposed rule (Utah Admin. R. 645-
301-512.100) that would allow a professional geologist to certify
certain cross sections and maps, and said it assumed the proposed
change is tied to Utah's new process for certifying professional
geologists. We assume that, by proposing Utah Admin. R. 645-303-
512.100, Utah is authorizing professional geologists to prepare, direct
the preparation of, and certify certain cross sections and maps in
accordance with all applicable State standards for professional
qualifications and conduct. As noted in finding III.B. of this final
rule, we find proposed Utah Admin. R. 645-301-512.100 is no less
effective than counterpart 30 CFR 780.14(c) and 784.23(c) because it
contains language that is the same as or similar to the language of
those corresponding Federal regulations.

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
pertains to air or water quality standards. Therefore, we did not ask
EPA to concur on the amendment. However, we asked EPA for its comments
on the amendment under 30 CFR 732.17(h)(11)(i) (Administrative Record
Number UT-1183). 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 January 4, 2006, we requested the ACHP's comments on
Utah's amendment (Administrative Record Number UT-1184). We requested
the SHPO's comments in a letter dated January 25, 2006 (Administrative
Record Number UT-1189). Neither the ACHP nor the SHPO responded to our
requests.

V. OSM's Decision

Based on the above findings, we approve Utah's November 28, 2005,
amendment, as revised on February 16, 2006.
To implement this decision, we are amending the Federal regulations
at 30

[[Page 33253]]

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.
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 regulation at 30 CFR 732.17(g) prohibits 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
regulations.

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 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.
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 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 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), 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; 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
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

[[Page 33254]]

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: April 27, 2006.
Allen D. Klein,
Regional Director, Western Region.

0
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 Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------

* * * * * * *
November 28, 2005 and February 16, June 8, 2006.......................... Utah Adm. R. 645-301-160, 645-
2006. 301-512.100, 645-401-330, and
645-401-400.
----------------------------------------------------------------------------------------------------------------

[FR Doc. E6-8927 Filed 6-7-06; 8:45 am]
BILLING CODE 4310-05-P

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