[Federal Register Volume 59, Number 169 (Thursday, September 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21582]


[[Page Unknown]]

[Federal Register: September 1, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

 

Kentucky Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with certain exceptions, a proposed 
amendment to the Kentucky regulatory program (hereinafter referred to 
as the Kentucky program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). Kentucky proposed revisions to the 
Kentucky Administrative Rules (KAR) at 405 KAR 7:080 pertaining to the 
services provided and to the eligibility criteria for assistance under 
its Small Operator Assistance Program (SOAP). The amendment is intended 
to revise the Kentucky program to be consistent with changes in section 
507 of SMCRA enacted by Congress as part of the Energy Policy Act of 
1992, Public Law 102-486.

EFFECTIVE DATE: September 1, 1994.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director, 
Lexington Field Office, Office of Surface Mining Reclamation and 
Enforcement, 2675 Regency Rd, Lexington, Kentucky 40503. Telephone: 
(606) 233-2896.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Kentucky Program

    On May 18, 1982, the Secretary of the Interior conditionally 
approved the Kentucky program. Background information on the Kentucky 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in the May 18, 
1982, Federal Register (47 FR 21404). Subsequent actions concerning 
conditions of approval and program amendments can be found at 30 CFR 
917.11, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

    By letter dated April 26, 1994 (Administrative Record No. KY-1278), 
Kentucky submitted a proposed amendment to its program pursuant to 
SMCRA. Kentucky submitted the proposed amendment at its own initiative. 
Kentucky proposed to revise ten sections of its regulations at 405 KAR 
7:080 concerning small operator assistance. The proposed amendment 
included revisions to the sections pertaining to program services, 
eligibility for services, information requirements, and applicant 
liability. It also contained editorial revisions and clarifications of 
other sections.
    OSM announced receipt of the proposed amendment in the May 20, 
1994, Federal Register (59 FR 26471), and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing on the adequacy of the proposed amendment. The public comment 
period closed on June 20, 1994.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment.
    Revisions not specifically discussed below concern nonsubstantive 
wording changes, or cross-references and paragraph notations to reflect 
organizational changes resulting from this amendment.

A. Revisions to Kentucky's Regulations That Are Substantively Identical 
to the Corresponding Provisions of the Federal Regulations

------------------------------------------------------------------------
                                                            Federal     
  State regulations (405            Subject             regulations (30 
       KAR 7:080)                                        CFR part 795)  
------------------------------------------------------------------------
Section 11(1)(d).........  Applicant liability......  795.17(a)(2)      
------------------------------------------------------------------------

    Because the above proposed revision is identical in meaning to the 
corresponding Federal regulation, the Director finds that Kentucky's 
proposed rule is no less effective than the Federal rule.

B. Revisions to Kentucky's Regulations That Are Not Substantively 
Identical to the Corresponding Provisions of the Federal Regulations

1. 405 KAR 7:080  Section 1. Scope
    a. Kentucky proposes to amend the establishing provision and 
redesignate it as new section 1(1). The revisions included adding the 
word ``administrative'' before the word ``regulation,'' replacing the 
word ``comprises'' with the word ``establishes,'' and adding the 
citation ``authorized at KRS 350.456(2)(f)'' to the end of the 
sentence. Section 1(1) now reads ``[t]his administrative regulation 
establishes the small operator assistance program (Program) authorized 
at KRS 350.465(2)(f).''
    The proposed revisions merely clarify rather than alter this 
provision of the existing approved regulation. Therefore, the Director 
finds that 405 KAR 7:080 section 1(1), as revised, is no less effective 
than the Federal regulation counterpart provision at 30 CFR 795.1.
    b. Kentucky proposed to revise the governing provision and 
redesignate it as new section 1(2). The revisions included removing the 
reference to specific types of assistance to eligible small operators 
in former sections 1(1)-1(3) and replacing them with reference to the 
provisions of section 507(c) of SMCRA and the Federal regulations at 30 
CFR Part 795. The deleted references included the determination of the 
probable hydrologic consequences, the statement of physical and 
chemical analysis of test borings of core samples, and other 
requirements. New section 1(2) provides that ``[c]onsistent with 30 USC 
1257(c) and 30 CFR Part 795, this administrative regulation shall 
govern the procedures and criteria under which the cabinet shall 
provide assistance to eligible small operators in meeting the 
requirements of KRS Chapter 350 and Title 405, Chapters 7 through 24.''
    Although the Federal counterpart provision at 30 CFR 795.1 still 
refers to specific types of assistance to eligible small operators, 
Kentucky incorporated these by reference into its regulation. 
Therefore, the Director finds 405 KAR 7:080 section 1(2), as revised, 
is no less effective than the Federal regulation counterpart provision 
at 30 CFR 795.1.
    c. Kentucky proposed to add the following interpretative provision 
at new section 1(3).
    This administrative regulation shall be construed to allow the 
fullest possible extent of services consistent with Federal 
requirements and available funds.
    While there is no Federal counterpart to this provision, the 
Director finds that the proposed addition is not inconsistent with the 
requirements of SMCRA and the Federal regulations.
2. 405 KAR 7:080  Section 3. Source and Use of Funds
    Kentucky proposes to revise 405 KAR 7:080 section 3 by removing the 
following language.
    Federal funds specifically authorized for this program to provide 
the services specified in section 4 of this regulation shall not be 
used to cover administrative costs.
    Federal funds for States to administer a SOAP are controlled 
through the grant application and review process at 30 CFR Part 735. 
Moreover, Kentucky can only utilize funds as authorized by OSM through 
the grant process which is controlled by oversight, and is subject to 
verification by audit. Since 30 CFR 795.11 (a) prohibits the 
expenditure of SOAP funds for administrative costs, OSM will not 
authorize the use of SOAP funds for administrative expenses. Therefore, 
the Director finds this proposed deletion will not render Kentucky's 
regulations inconsistent with the intent of the Federal regulations.
3. 405 KAR 7:080  Section 4. Program Services
    a. Kentucky proposes to revise the introductory text to read ``[t]o 
the extent possible with available funds the cabinet shall provide 
services in accordance with this section.''
    Kentucky proposes to revise section 4(1) to read ``[f]or eligible 
small operators who request assistance, the cabinet shall select and 
pay a qualified laboratory to perform the following services in 
accordance with section 8 of this administrative regulation.''
    When read together, the amended requirements in the introductory 
text and section 4(1) are substantively the same as the requirements in 
the Federal regulations at 30 CFR 795.9(a), as amended May 31, 1994 (59 
FR 28136). Therefore, the Director finds 405 KAR 7:080 section 4, as 
amended above, is no less effective than the Federal regulations.
    b. Kentucky proposed to revise section 4(1)(a), which authorizes 
the determination of probable hydrologic consequences, by adding a 
provision for performing engineering analyses and preparing designs 
necessary for the determination. Kentucky proposed to revise section 
4(1)(b) by adding a provision for performance of geologic drilling. 
Kentucky proposed adding new section 4(1)(c) to authorize the 
collection of cultural, historic, and archaeological resource 
information and preparation of necessary reports and plans. Kentucky 
proposed adding new section 4(1)(d) to authorize performance of 
preblasting surveys. Kentucky proposed adding new section 4(1)(e) to 
authorize collection of site specific information and preparation of 
plans for the protection and enhancement of fish and wildlife and other 
environmental values. Kentucky proposed adding new section 4(1)(f) to 
authorize development of cross sections, maps and plans required for 
permit applications.
    The amended and new regulations at 405 KAR 7:080 section 4(1) (a)-
(f) contain provisions for program services substantively the same as 
the provisions for program services contained in the Federal 
regulations at 30 CFR 795.9(b) (1)-(6), as amended May 31, 1994 (59 FR 
28136). Therefore, the Director finds that the revised regulations at 
405 KAR 7:080 section 4(1) (a)-(f) are not less effective than the 
Federal regulations.
    c. Kentucky proposes to revise section 4(2) by adding the language 
``[f]or eligible small operators who request assistance, the cabinet 
may select and pay a qualified laboratory to'' at the beginning of the 
section.
    This addition was necessary because of the restructuring of section 
4(1), and it does not alter the provisions of the existing approved 
regulation. While there is no direct Federal counterpart regulation, 
the Director finds that 405 KAR 7:080 section 4(2) is not inconsistent 
with the requirements of SMCRA and the Federal regulations.
    d. Kentucky proposed to add new sections 4(3) and 4(4) based on the 
new provisions at section 507(c)(2) of SMCRA. Proposed section 4(3) 
provides for informational services to ensure that eligible small 
operators are aware of the assistance available under the SOAP. 
Proposed section 4(4) obligates Kentucky to make training services 
available under the SOAP concerning preparation of permit applications 
and compliance with regulatory requirements.
    These proposed additions are consistent with section 507(c)(2) of 
SMCRA as amended by the Energy Policy Act of 1992. The Federal 
regulations at 30 CFR 795.9 have not yet been revised to include 
similar provisions. As indicated in the May 31, 1994, Federal Register 
(59 FR 28136), OSM indicated that these requirements to provide notice 
and training to eligible small operators will be subject of a separate 
rulemaking. The Director finds Kentucky's proposal to be no less 
stringent than section 507(c)(2) of SMCRA.
4. 405 KAR 7:080  Section 5. Eligibility for Assistance
    Kentucky proposes to amend section 5(2) by deleting the existing 
language which sets forth the period of consideration in which an 
applicant may mine 300,000 tons or less, and adding language that would 
limit the period of consideration to the 12 months immediately 
following the date the permit is issued. 30 CFR 795.6 (2) states that 
in order for an operator to be eligible, his/her ``probable total 
annual production from all locations'' will not exceed 300,000 tons per 
year with no limitations.
    The addition of Kentucky's proposed language and the deletion of 
the existing language at section 5(2) would not facilitate 
consideration of the operators probable annual production, and it would 
limit consideration to only one year immediately following the permit 
issuance. In light of this, the Director finds that this proposed 
language, coupled with the deletion of the existing language, is less 
effective than the Federal rules at 30 CFR 795.6 (2). Therefore, this 
proposed amendment is not approved.
5. 405 KAR 7:080  Section 8. Information Requirements
    a. Kentucky proposed to amend section 8(1) to reflect the expanded 
permitting assistance authorized by section 507(c) of SMCRA as amended 
by the Energy Policy Act of 1992. This section now authorizes the 
cabinet to determine for each applicant or group of applicants ``the 
specific information, including the collection and analysis of field 
information and the development of engineering and other technical 
analyses, designs, and plans, that shall be provided under this 
section.''
    Kentucky proposed to amend sections 8(2)(a) and 8(2)(b) by adding 
references to the specific sections of 405 KAR 8:030, 8:040, 16.120, 
and 18:120 that correspond to the revised and new program services 
authorized in 405 KAR 7:080 section 4(1) (a)-(f). The new referenced 
sections are 405 KAR 8:030 and 8:040 section 11(2)--Cultural, historic, 
and archaeological resources information; 405 KAR 8:030 and 8:040 
section 19--Vegetation information; 405 KAR 8:030 and 8:040 section 
20--Fish and wildlife resources information; 405 KAR 8:030 and 8:040 
section 23--Maps and drawings; 405 KAR 8:030 and 8:040 section 36--Fish 
and wildlife protection and enhancement; 405 KAR 16:120 section 2--
Preblasting survey; and 405 KAR 18:120 section 2--Preblasting survey.
    As amended, 405 KAR 7:080 sections 8(1) and 8(2) satisfy the 
provisions in 30 CFR 795.9(b) that the program administrator shall 
determine the data requirements necessary to provide program services. 
Therefore, the Director finds the amended provisions in 405 KAR 7:080 
section 8 to be no less effective than the comparable provisions in the 
Federal regulations at 30 CFR 795.9(b), as amended on May 31, 1994 (59 
FR 28136).
    b. 405 KAR 7:080 section 8(2) (a) and (b).
    Kentucky also proposes to amend sections 8(2)(a) and 8(2)(b) by 
deleting references to 405 KAR 8:030 and 8:040 sections 20(2)(c)--
Biological assessment of surface waters.
    The references to 405 KAR 8:030 and 8:040 sections 20(2)(c) were 
never approved as part of the Kentucky program because action had been 
deferred on their addition in the April 15, 1992, Federal Register (57 
FR 13043). Therefore, the Director finds the deletion of these 
references will not render Kentucky's regulations less effective than 
the Federal regulations. Since Kentucky has removed specific reference 
to these sections from its regulations, the Director finds the April 
15, 1992, deferred action on sections 8(2)(a) and 8(2)(b) moot.
6. Section 11. Applicant Liability
    a. Kentucky proposes to amend section 11(1) by adding the word 
``administrative'' before the word ``regulation.'' The Director finds 
the addition of this word is not inconsistent with any requirement of 
SMCRA or the Federal regulations. However, this regulation, as revised, 
does not reflect the provisions in new section 507(h) of SMCRA. Section 
507(h) requires that the costs of all services rendered pursuant to 
section 507(c) (1) and (2) shall be reimbursed by SOAP recipients under 
specified circumstances. The Kentucky regulation at 405 KAR 7:080 
section 11(1) still requires reimbursement only for the costs of the 
laboratory services performed. Since small operator assistance will no 
longer be limited to laboratory services under 405 KAR 7:080 section 4, 
the Director finds 405 KAR 7:080 section 11(1) is less stringent than 
section 507(h) of SMCRA and is less effective than the Federal 
regulations at 30 CFR 795.12(a), as amended May 31, 1994 (59 FR 28136). 
Therefore, he is not approving the word ``laboratory'' in this 
regulation to the extent it appears to require SOAP recipients to only 
reimburse the cabinet for laboratory services performed. The Director 
is requiring Kentucky to revise 405 KAR 7:080 section 11(1) to either 
delete the word ``laboratory'' in the phrase ``The applicant shall 
reimburse the cabinet for the costs of the laboratory services 
performed * * * '' or to otherwise specify that the costs of all 
services rendered pursuant to 405 KAR 7:080 shall be reimbursed by SOAP 
recipients.
    b. Kentucky proposed to amend section 11(1)(e) by revising the 
liability period for reimbursement of funds for a permit acquired with 
SOAP assistance whose rights are sold, transferred, or assigned. 
Reimbursement shall be required if transfers, sales and assignments 
occur ``during the twelve months immediately following the date the 
permit is issued'' and the transferee's production exceeds the 300,000 
ton annual production limit during ``the twelve (12) months immediately 
following the effective date of the sale, transfer, or assignment.''
    The amended Federal regulation at 30 CFR 795.12(a)(3) provides that 
reimbursement shall be required if the ``transferee's total actual and 
attributed production exceeds the 300,000 ton production limit during 
the 12 months immediately following the date on which the permit was 
originally issued.'' In the preamble of the May 31, 1994, Federal 
Register (59 FR 28136), OSM discussed its reason for deciding to retain 
the section on transferred liability. Removal of the section was 
rejected ``[b]ecause of the potential for abuse and the fact that no 
substantive reasons were provided to balance this concern and no 
regulatory criteria were offered to distinguish between normal business 
practices and those that could result in abuse of the SOAP.'' Kentucky 
proposed a liability period provision which would further ensure 
against the potential for abuse of the SOAP by small operators who act 
as fronts for larger operators who would otherwise be ineligible for 
assistance. Section 507(h) of SMCRA requires reimbursement ``during the 
12 months immediately following the date on which the operator is 
issued the surface coal mining and reclamation permit.'' Since 
Kentucky's regulations at 405 KAR 8:010 section 22(6) require the 
cabinet to reissue the original permit to the successor, setting the 
liability period for reimbursement during the 12 months following the 
reissuance date would not be inconsistent with SMCRA. Therefore, the 
Director finds 405 KAR 7:080 section 11(1)(e), as amended, is not 
inconsistent with section 507(h) of SMCRA and is no less effective than 
the Federal regulations at 30 CFR 795.12(a)(3).

C. Revisions to Kentucky's Regulations With No Corresponding Federal 
Provisions

1. 405 KAR 7:080  Necessity and Function
    Kentucky proposed to revise the ``Necessity and Function'' section 
of 405 KAR 7:080 by deleting the last two sentences of the paragraph 
and adding a narrative summary of the purpose and the provisions of the 
regulations at 405 KAR 7:080.
    While there is no Federal regulation at 30 CFR Part 795 which 
directly corresponds to the ``Necessity and Function'' section, the 
Director finds the proposed revision is not inconsistent with SMCRA or 
the Federal regulations.
2. 405 KAR 7:080  General
    a. In proposed revisions to 405 KAR 7:080 section 1, section 4(1), 
section 5(4), section 6(4) and (5), section 7(1)(b) and (3), section 
8(2), section 10(2)(b), and section 11(1), Kentucky refers to 
administrative regulations, rather than just regulations as currently 
expressed in those provisions.
    The Director finds that the proposed revisions add appropriate 
clarity to the Kentucky regulations and are not inconsistent with any 
requirement of SMCRA or the Federal regulations.
    b. Kentucky proposed revisions to 405 KAR 7:080 section 6(8)(b); 
section 7(1)(b); the title of section 8, section 8(1)-(3); and section 
10(2)(a) 2 and 7 by replacing the word ``data'' with the word 
``information.''
    The Director finds that the words ``data'' and ``information'' are 
interchangeable in the context of these provisions and that the 
proposed revisions are not inconsistent with any requirement of SMCRA 
or the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. No one requested an 
opportunity to speak at a public hearing, so no hearing was held.
    By letter dated June 22, 1994, the Kentucky Resources Council (KRC) 
filed comments in response to the proposed rule published on May 20, 
1994. The KRC commented that the proposed State regulatory changes, 
with certain clarifications, appear to conform to section 507 of the 
Act, as revised by the 1992 Amendments. Following are the three areas 
the KRC believed were in need of clarification.
    1. The first is that given the revisions to section 507(h) that 
were made in the 1992 amendments, it does not appear to be permissible 
to allow a recipient of SOAP funds to forego reimbursement based on a 
State agency determination of ``good faith.'' The public interest in 
assuring that SOAP funds are expended on those operations that truly 
need such public assistance, militates against such a waiver of 
reimbursement for those operations that do not qualify as small 
operators.
    The Director finds that the Kentucky regulation at 405 KAR 7:080 
section 11(2) which contains the waiver of reimbursement obligation is 
not being amended and that it is substantively the same as the Federal 
regulation at 30 CFR 795.12(b).
    2. The second area of clarification is in the proposed language of 
section 4(3), which as written obligates the cabinet to provide 
informational services concerning the general availability of 
``assistance'' under the program. The 1992 amendments sought to 
specifically require that the states make known the availability of 
``the assistance available under this subsection,'' that being the 
assistance in training operators in preparing permit applications and 
regulatory compliance. In order to better track the Federal language, 
subsection (3) should be a second sentence in existing (4) rather than 
a separate subsection.
    The Director finds that Kentucky correctly interpreted the 
provisions in section 507(c)(2) of SMCRA. The cabinet is required to 
ensure that qualified coal operators are aware of the assistance 
available under paragraph (1) of subsection (c) of section 507 of 
SMCRA.
    3. The final area for which clarification is sought is under 
section 4(1)(c). The Federal language authorizes expenditures of SOAP 
funds for collection of archaeological and historical information 
necessary to satisfy section 507(b)(13) and any other archaeological or 
historical information required by the regulatory authority, and the 
preparation of plans necessitated thereby. The State regulatory 
language speaks in terms of ``necessary reports and plans'' but does 
not clarify when a report or plan is deemed necessary. Missing is the 
assurance that the scope of reimbursement includes any and all plans 
that are necessitated because of the archaeological information that is 
collected, i.e., those mitigation and avoidance plans that might be 
required under the National Historic Preservation Act because of Phase 
I data collection.
    The Director finds that section 4(1) provides that the collection 
of cultural, historic, and archaeological resources information and 
preparation of necessary reports and plans would be performed in 
accordance with 405 KAR 7:080 section 8. Since section 8 contains the 
minimum requirements for information necessary to the objectives of 
SOAP and includes at section 8(2)(a)1 and 8(2)(b)1, the cultural, 
historic, and archaeological resources information regulations at 405 
KAR 8:030 section 11(2) and 405 KAR 8:040 section 11(2) respectively, 
the Director finds that Kentucky has adequate authority under its 
regulations at 405 KAR 7:080 section 4 and section 8 to provide 
assistance for plans that are necessitated because of Phase I data 
collection.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Kentucky program. No Federal 
agency comments were received.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). 
None of the revisions that Kentucky proposed to make in this amendment 
pertain to air or water quality standards. Therefore, OSM did not 
request EPA's concurrence.

V. Director's Decision

    Based on the above findings, the Director approves, with certain 
exceptions, the proposed amendment as submitted by Kentucky on April 
26, 1994.
    With the requirement that Kentucky further revise its rules, the 
Director does not approve, as discussed in finding No. B.6.a, the word 
``laboratory'' in 405 KAR 7:080 section 11(1), concerning applicant 
liability for reimbursement of the cost of services provided.
    As discussed in finding No. B.4., the Director does not approve the 
proposed language that would place a limitation on the period of 
consideration of operator eligibility to the 12 months immediately 
following the issuance of the permit. Additionally, the Director does 
not approve the deletion of the existing language at 405 KAR 7:080 
section 5.2.
    In accordance with 30 CFR 732.17(f)(1), the Director is also taking 
this opportunity to clarify, in the required amendment section at 30 
CFR 917.16 that, within 60 days of the publication of this final rule, 
Kentucky must either submit a proposed written amendment or a 
description of an amendment to be proposed that meets the requirements 
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is 
consistent with Kentucky's established administrative or legislative 
procedures.
    The Federal regulations at 30 CFR Part 917, codifying decisions 
concerning the Kentucky program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In the 
oversight of the Kentucky program, the Director will recognize only the 
statutes, regulations and other materials approved by OSM, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by Kentucky of only such 
provisions.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 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.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

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 has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the corresponding Federal regulations.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 18, 1994.
Tim Dieringer,
Acting Assistant Director, Eastern Support Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 917--KENTUCKY

    1. The authority citation for Part 917 continues to read as 
follows:

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

    2. Section 917.15 is amended by adding paragraph (vv) to read as 
follows:


Sec. 917.15  Approval of regulatory program amendments.

* * * * *
    (vv) With the exception of the deletion and addition found in 405 
KAR 7:080 section 5(2), and of the word ``laboratory'' in 405 KAR 7:080 
section 11(1), concerning applicant liability for reimbursement of the 
costs of services pursuant to the SOAP, revisions to the following 
rules, as submitted to OSM on April 26, 1994, are approved effective 
September 1, 1994.

------------------------------------------------------------------------
           405 KAR 7:080                  Small operator assistance     
------------------------------------------------------------------------
Necessity and Function.............  Introductory Text.                 
Section 1..........................  Scope.                             
Section 3..........................  Source and Use of Funds.           
Section 4..........................  Program Services.                  
Section 5..........................  Eligibility for Assistance.        
Section 6(4)-(5), (8)(b)...........  Filing for Assistance.             
Section 7(1)(b), (3)...............  Application Approval and Notice.   
Section 8..........................  Information Requirements.          
Section 10(2) (a) and (b)..........  Qualified Laboratories.            
Section 11(1), (d)-(e).............  Applicant Liability with the       
                                      exception of the word             
                                      ``laboratory'' in 11(1).          
------------------------------------------------------------------------

    3. Section 917.16 is amended by adding paragraph (l) to read as 
follows:


Sec. 917.16  Required program amendments.

* * * * *
    (l) By October 31, 1994, Kentucky shall either submit a proposed 
amendment or a description of an amendment to be proposed, together 
with a timetable for adoption of proposed revisions to 405 KAR 7:080 
section 5(2) of the Kentucky regulations to delete the phrase ``the 
twelve (12) months immediately following the date the permit is 
issued'' and provide that an applicant establish that his or her 
probable total attributed annual production from all locations on which 
the operator is issued the surface coal mining and reclamation permit 
will not exceed 300,000 tons; and to 405 KAR 7:080 section 11(1) of the 
Kentucky Regulations to either delete the word ``laboratory'' in the 
phrase ``The applicant shall reimburse the cabinet for the costs of the 
laboratory services performed * * *'' or otherwise specify that the 
costs of all services rendered pursuant to 405 KAR 7:080 shall be 
reimbursed by SOAP recipients.

[FR Doc. 94-21582 Filed 8-31-94; 8:45 am]
BILLING CODE 4310-05-M