04-12248. Iowa Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving, with one additional requirement, an amendment to the Iowa regulatory program (Iowa program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Iowa proposed to revise its regulatory program by updating its adoption by reference of applicable portions of 30 CFR part 700 to End from the July 1, 1992, version to the July 1, 2002, version. Iowa intends to revise its program to be consistent with the corresponding Federal regulations.

DATES:

Effective Date: June 1, 2004.

FOR FURTHER INFORMATION CONTACT:

Charles E. Sandberg, Mid-Continent Regional Coordinating Center. Telephone: [phone]. Internet address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Iowa Program

II. Submission of the Amendment

III. OSM's Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. Procedural Determinations

I. Background on the Iowa 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 Iowa program effective April 10, 1981. You can find background information on the Iowa program, including the Secretary's findings, the disposition of comments, and conditions of approval, in the January 21, 1981, Federal Register (46 FR 5885). You can also find later actions concerning Iowa's program and program amendments at 30 CFR 915.10, 915.15, and 915.16.

II. Submission of the Amendment

By letter dated February 24, 2004 (Administrative Record No. IA-448), Iowa sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). Iowa sent the amendment in response to a June 17, 1997, letter that we sent to Iowa in accordance with 30 CFR 732.17(c), concerning multiple changes made to the Federal regulations between 1988 and 1995 (Administrative Record No. IA-440). Iowa also responded to an August 23, 2000, letter that we sent to Iowa in accordance with 30 CFR 732.17(c), concerning valid existing rights (Administrative Record No. IA-444). Iowa proposed to revise its regulatory program by updating its adoption by reference of applicable portions of 30 CFR part 700 to End from the July 1, 1992, version to the July 1, 2002, version.

We announced receipt of the amendment in the March 25, 2004, Federal Register (69 FR 15272). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on April 26, 2004. We did not receive any comments.

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, with one additional requirement, as described below. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes.

A. Adoptions by Reference of 30 CFR Part 700 to End Revised as of July 1, 2002

Iowa updated its adoptions by reference of applicable sections of 30 CFR part 700 to End from those in effect as of July 1, 1992, to those in effect as of July 1, 2002. Iowa also revised terms and cross-references to the Federal regulations and corrected editorial-type errors, as necessary. The sections of Iowa's coal mining rules that are being revised in this manner, along with the applicable sections of the Federal regulations, are listed in the table below.

27 Iowa Administrative Code Chapter 40, Coal Mining Rules (IAC 27-40)	Topic	Federal regulations adopted by reference (30 CFR)
40.1(1), 40.1(4)	Authority and scope	Part 700 to End.
40.3(207)	General	Part 700.
40.4(207), 40.4(2), 40.4(3)	Permanent regulatory program and exemption for coal extraction incidental to the extraction of other minerals	Parts 701 and 702.
40.5(207)	Restrictions on financial interests of State employees	Part 705.
40.6(207)	Exemptions for coal extraction incident to government—financed highway or other constructions	Part 707.
40.7(207)	Protection of employees	Part 865.
40.11(207)	Initial regulatory program	Part 710.
40.12(207)	General performance standards—initial program	Part 715.
40.13(207)	Special performance standards—initial program	Part 716.
40.21(207), 40.21(4) through 40.21(6)	Areas designated by an Act of Congress	Part 761.
40.22(207), 40.22(2)	Criteria for designating areas as unsuitable for surface coal mining operations	Part 762.
40.23(207)	State procedures for designating areas unsuitable for surface coal mining operations	Part 764.
40.30(207), 40.30(1), 40.30(4)	Requirements for coal exploration	Part 772.
40.31(207), 40.31(1) through 40.31(9), 40.31(13) through 40.31(15)	Requirements for permits and permit processing	Part 773.
40.32(207), 40.32(1), 40.32(2), rights 40.32(4)	Revision or amendment; renewal; and transfer, assignment, or sale of permit rights	Part 774.
40.33(207)	General content requirements for permit applications	Part 777.
40.34(207), 40.34(2), 40.34(3)	Permit application—minimum requirements for legal, financial, compliance, and related information	Part 778.
40.35(207)	Surface mining permit applications—minimum requirements for information on environmental resources	Part 779.
40.36(207)	Surface mining permit applications—minimum requirements for reclamation and operation plan	Part 780.
40.37(207), 40.37(4)	Underground mining permit applications—minimum requirements for information on environmental resources	Part 783.
40.38(207), 40.38(2), 40.38(3)	Underground mining permit applications—minimum requirements for reclamation and operation plan	Part 784.
40.39(207)	Requirements for permits for special categories of mining	Part 785.
40.51(207)	Bond and insurance requirements for surface coal mining and reclamation operations under regulatory programs	Part 800.
40.61(207), 40.61(4)	Permanent program performance standards—general provisions	Part 810.
40.62(207)	Permanent program performance standards—coal exploration	Part 815.
40.63(207), 40.63(9)	Permanent program performance standards—surface mining activities	Part 816.
40.64(207)	Permanent program performance standards—underground mining activities	Part 817.
40.65(207)	Special permanent program performance standards—auger mining	Part 819.
40.66(207)	Special permanent program performance standards—operations on prime farmland	Part 823.
40.67(207)	Permanent program performance standards—coal preparation plants not located within the permit area of a mine	Part 827.
40.71(207)	State regulatory authority—inspection and enforcement	Part 840.
40.74(207), 40.74(9)	Civil penalties	Part 845.
40.75(207)	Individual civil penalties	Part 846.
40.81(207)	Permanent regulatory program requirements—standards for certification of blasters	Part 850.
40.82(207)	Certification of blasters	Part 955.
40.92(8)	Contested cases	775.11 and 775.13

We find that Iowa's revised regulations are no less effective than the corresponding Federal regulations, and we are approving these adoptions by reference.

B. IAC 27—40.4(207) Permanent Regulatory Program (30 CFR Part 701)

1. At IAC 27—40.4(9), Iowa removed its definition of “previously mined area” and adopted by reference the Federal definition of “previously mined area” at 30 CFR 701.5.

We find that Iowa's removal of its definition of “previously mined area” at IAC 27—40.4(9) and the adoption by reference of the Federal definition of “previously mined area” at 30 CFR 701.5 does not make its regulations less effective than the Federal regulations.

Therefore, we are approving this removal and adoption by reference.

2. At IAC 27—40.4(11), Iowa deleted from its reference of 30 CFR 701.5 the definition for “violation, failure or refusal” and inserted in its place, the following definition:

“Violation, failure, or refusal,” means—

(1) A violation of a condition of an approved permit pursuant to the Iowa program or an enforcement action pursuant to Iowa Code section 207.14, or

(2) A failure or refusal to comply with any order issued under Iowa Code section 207.14 or any order incorporated in a final decision issued by the administrator, except an order incorporated in a decision issued under subrule 40.74(7) or rule 27—40.7(207).

We find that Iowa's definition of “violation, failure, or refusal” is no less effective than the counterpart Federal definition at 30 CFR 701.5, and we are approving it.

C. IAC 27—40.6(207) Exemptions for Coal Extraction Incident to Government-Financed Highway or Other Constructions (30 CFR Part 707)

Iowa removed IAC 27—40.6(2), which deleted the words “250 tons” from its reference of 30 CFR 707.12 and inserted the words “50 tons.”

We find that the removal of IAC 27—40.6(2) makes Iowa's regulations at IAC 27—40.6(207) substantively the same as the counterpart Federal regulations at 30 CFR part 707, and we are approving it.

D. IAC 27—40.31(207) Requirements for Permits and Permit Processing (30 CFR Part 773)

At IAC 27—40.31(12), Iowa revised its existing paragraph (h) by adding the words “The permittee” and the words “the permit shall” as shown below. Paragraph (h) is a permit condition that had been previously added to Iowa's adoption by reference of 30 CFR 773.17.

(h) The permittee shall ensure and the permit shall contain specific conditions requiring that, as a condition of the permit, the permittee shall not, except as permitted by law, willfully resist, prevent, impede, or interfere with the division or any of its agents in the performance of their duties.

We find that the revisions are minor in nature and only clarify the previously approved permit condition. Therefore, this change does not make Iowa's regulation less effective than the Federal regulation at 30 CFR 773.17, and we are approving it.

E. IAC 27—40.35(207) Surface Mining Permit Applications—Minimum Requirements for Information on Environmental Resources (30 CFR Part 779)

Iowa removed IAC 27—40.35(3), which deleted from 30 CFR 779.22(a)(1) the words “A map” and inserted the words “A map at a scale of 1:2400 or larger or an aerial photo.”

We find that Iowa's removal of this provision is appropriate because we removed 30 CFR 779.22 from the Federal regulations on May 27, 1994 (59 FR 27932). Therefore, we are approving the removal of IAC 27—40.35(3).

F. IAC 27—40.41(207) Permanent Regulatory Program—Small Operator Assistance Program (30 CFR Part 795)

At IAC 27—40.41(207), Iowa updated its adoption by reference of the requirements of 30 CFR part 795 from those in effect as of July 1, 1992, to those in effect as of July 1, 2002.

We find that Iowa's revised regulations at IAC 27—40.41(207) are no less effective than the corresponding Federal regulations at 30 CFR part 795. However, Iowa has not updated its statutory authority for small operator assistance at Iowa Code section 207.4, subsection 1, paragraph d to reflect the changes made to section 507(c)(1) of SMCRA on November 5, 1990, and October 24, 1992. Therefore, we are approving Iowa's regulations at IAC 27—40.41(207) with the requirement that Iowa amend Iowa Code section 207.4, subsection 1, paragraph d to include the changes made to section 507(c)(1) of SMCRA before implementing the regulations.

G. IAC 27—40.63(207) Permanent Program Performance Standards—Surface Mining Activities (30 CFR Part 816)

At IAC 27—40.63(6), Iowa added a reference to its “Revegetation Success Standards and Statistically Valid Sampling Techniques” dated April 1999, as approved on December 27, 2001.

We find that Iowa's reference to its “Revegetation Success Standards and Statistically Valid Sampling Techniques” is appropriate. At 30 CFR 816.116(a)(1), we require regulatory authorities to include standards for success and statistically valid sampling techniques for measuring success in their approved regulatory programs. We approved Iowa's standards and sampling techniques on December 27, 2001. Therefore, we are approving Iowa's reference at IAC 27—40.63(6).

H. IAC 27—40.64(207) Permanent Program Performance Standards—Underground Mining Activities (30 CFR Part 817)

1. At IAC 27—40.64(4), Iowa added a reference to its “Revegetation Success Standards and Statistically Valid Sampling Techniques” dated April 1999, as approved on December 27, 2001.

We find that Iowa's reference to its “Revegetation Success Standards and Statistically Valid Sampling Techniques” is appropriate. At 30 CFR 817.116(a)(1), we require regulatory authorities to include standards for success and statistically valid sampling techniques for measuring success in their approved regulatory programs. We approved Iowa's standards and sampling techniques on December 27, 2001. Therefore, we are approving Iowa's reference at IAC 27—40.64(4).

2. Iowa removed IAC 27—40.64(6), which deleted from its reference of 30 CFR 817.121(c)(2) the phrase “To the extent required under applicable provisions of State law.”

We find that Iowa's removal of IAC 27—40.64(6) is appropriate. On March 31, 1995, we revised 30 CFR 817.121(c), and it no longer requires the correction of material damage to the extent required under applicable provisions of State law (60 FR 16735). Therefore, we are approving this removal.

I. IAC 27—40.73(207) Enforcement (30 CFR Part 843)

1. At IAC 27—40.73(2), Cessation Orders, Iowa revised its reference of the State regulations in paragraph “g” by changing 27—40.31(207) to 27—40.32(207). Iowa also revised its references of the Federal regulations by changing 30 CFR 773.17(i) to 30 CFR 774.12 and 30 CFR 778.13(c) and (d) to 30 CFR 778.11(c) and (d).

We find that the changes made by Iowa are appropriate. We codified the substantive requirements of 30 CFR 773.17(i) at 30 CFR 774.12 on December 19, 2000 (65 FR 79663). We also redesignated the substantive requirements of 30 CFR 778.13(c) and (d) as 30 CFR 778.11(c) and (d) on December 19, 2000 (65 FR 79664). Therefore, we are approving the changes made to IAC 27—40.73(2)g.

2. At IAC 27—40.73(4), Suspension or Revocation of Permits, Iowa revised its reference in paragraph “d” from 27—40.74(207) to paragraph “a”, subparagraph (1) of this subrule.

We find that this is a nonsubstantive, editorial-type correction that is appropriate and does not make Iowa's regulation less effective than the counterpart Federal regulation at 30 CFR 843.13(d).

J. IAC 27—40.75(207) Individual Civil Penalties (30 CFR Part 846)

At 27—40.75(2), Iowa removed its definition of “violation, failure or refusal” and added it at 27—40.4(11).

We find that this revision is appropriate. On December 19, 2000, we moved the Federal definition of “violation, failure or refusal” from 30 CFR 846.5 to 30 CFR 701.5 (65 FR 79656). Therefore, we are approving the removal of this definition from IAC 27—40.75(2). See discussion of 27—40.4(11) above under B.2 of OSM's Findings.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment, 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 Iowa program (Administrative Record No. IA-448.1). We did not receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 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 Iowa proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record No. IA-448.1). 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 March 3, 2004, we requested comments on Iowa's amendment (Administrative Record No. IA-448.1), but neither responded to our request.

V. OSM's Decision

Based on the above findings, we approve with one additional requirement as discussed in III.F. of OSM's Findings, the amendment Iowa sent us on February 24, 2004. In Finding III.F., we require Iowa to revise its statute at Iowa Code section 207.4, subsection 1, paragraph d to include the changes that were made to section 507(c)(1) of SMCRA on November 5, 1990, and October 24, 1992. When Iowa meets this requirement, the State can implement the proposed amendment IAC 27-40.41(207).

We approve the regulations proposed by Iowa with the provision that they be fully promulgated in identical form to the regulations submitted to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR part 915, which codify decisions concerning the Iowa 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 demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630—Takings

In this rule, the State is adopting valid existing rights standards that are similar to the standards in the Federal definition at 30 CFR 761.5. Therefore, this rule has the same takings implications as the Federal valid existing rights rule. The takings implications assessment for the Federal valid existing rights rule appears in Part XXIX.E. of the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 1999.

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.

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. This determination is based on the fact that the Iowa program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Iowa program has no effect on Federally-recognized Indian tribes.

Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rule, is based 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), 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 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 915

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: May 7, 2004.

Charles E. Sandberg,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 915 is amended as set forth below:

PART 915—IOWA

1. The authority citation for part 915 continues to read as follows:

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

2. Section 915.15 is amended in the table by adding a new entry in chronological order by “Date of final publication” to read as follows:

§ 915.15

Approval of Iowa regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
February 24, 2004	June 1, 2004	IAC 27—40.1(1), 40.1(4); 40.3(207); 40.4(207), 40.4(2), 40.4(3), 40.4(9), 40.4(11); 40.5(207); 40.6(207), 40.6(2); 40.7(207); 40.11(207); 40.12(207); 40.13(207); 40.21(207), 40.21(4) through 40.21(6); 40.22(207), 40.22(2); 40.23(207); 40.30(207), 40.30(1), 40.30(4); 40.31(207), 40.31(1) through 40.31(9), 40.31(12) through 40.31(15); 40.32(207), 40.32(1), 40.32(2), 40.32(4); 40.33(207); 40.34(207), 40.34(2), 40.34(3); 40.35(207), 40.35(3); 40.36(207); 40.37(207), 40.37(4); 40.38(207), 40.38(2), 40.38(3); 40.39(207); 40.41(207); 40.51(207); 40.61(207), 40.61(4); 40.62(207); 40.63(207), 40.63(6), 40.63(9); 40.64(207), 40.64(4), 40.64(6); 49.65(207); 40.66(207); 40.67(207); 40.71(207); 40.73(2)g, 40.73(4)d; 40.74(207), 40.74(9); 40.75(207), 40.75(2); 40.81(207); 40.82(207); 40.92(8).

3. Section 915.16 is amended by adding paragraph (b) to read as follows:

§ 915.16

Required program amendments.

* * * * *

(b) Before Iowa implements its regulations at IAC 27—40.41(207), it must revise Iowa Code section 207.4, subsection 1, paragraph d to include the changes that were made to section 507(c)(1) of SMCRA on November 5, 1990, and October 24, 1992.