[Federal Register Volume 65, Number 123 (Monday, June 26, 2000)]
[Proposed Rules]
[Pages 39319-39321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16088]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-226-FOR]


Kentucky Regulatory Program

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

ACTION: Proposed rule; public comment period.

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SUMMARY: OSM is announcing a proposed action to preempt and supersede 
portions of Kentucky Revised Statute (KRS) 350.060(16). The 1998 
Kentucky General Assembly enacted this provision, which pertains to the 
renewal of expired permits, into law by passing House Bill 593.
    It proposed that if a permit has expired or a permit renewal 
application

[[Page 39320]]

has not been timely filed and the operator or permittee wants to 
continue the surface coal mining operation, Kentucky will issue a 
notice of noncompliance (NOV). The NOV will be considered complied 
with, and the permit may be renewed, if Kentucky receives a permit 
renewal application within 30 days of the receipt of the NOV. Upon 
submittal of a permit renewal application, the operator or permittee 
will be deemed to have timely filed the application and can continue, 
under the terms of the expired permit, the mining operation, pending 
issuance of the permit renewal. Failure to comply with the remedial 
measures of the NOV will result in the cessation of the operation.
    Portions of this provision would allow a permittee to continue 
mining on an expired permit after the permit renewal application has 
been filed within 30 days of the receipt of the NOV, regardless of 
whether the application is timely filed, and even if the application is 
filed after permit expiration.
    OSM is taking this action because the provisions are inconsistent 
with the requirements of the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). This determination is based on reasons cited in the 
``Director's Findings'' section in a separate notice published on May 
10, 2000 (65 FR 29949), announcing disapproval of the statutory 
provision.

DATES: If you submit written comments, they must be received by 4:00 
p.m. (local time) on July 26, 2000.

ADDRESSES: Mail or hand-deliver your written comments or requests for 
further information to William J. Kovacic, Director, Lexington Field 
Office, 2675 Regency Road, Lexington, Kentucky 40503. Telephone: (859) 
260-8400. E-mail: [email protected].
    You may review copies of the Kentucky program, the proposed 
modification to the program, and all written comments received in 
response to this document at the Lexington Field Office at the address 
listed above during normal business hours, Monday through Friday, 
excluding holidays.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

Written Comments

    If you submit written or electronic comments on the proposed rule 
during the 30-day comment period, they should be specific, be confined 
to issues pertinent to the notice, and explain the reason for your 
recommendation(s). We may not be able to consider or include in the 
Administrative Record comments delivered to an address other than the 
one listed above (see ADDRESSES).

Electronic Comments

    Please submit Internet comments as an ASCII, WordPerfect, or Word 
file and avoid using special characters and any form of encryption. 
Please also include ``Attn: SPATS No. KY-226-FOR'' and your name and 
return address in your Internet message. If you do not receive a 
confirmation that we have received your Internet message, contact the 
Lexington Field Office at (859)260-8400.

Availability of Comments

    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours at the OSM Administrative Record Room (see ADDRESSES). 
Individual respondents may request that we withhold their home address 
from the rulemaking record, which we will honor to the extent allowable 
by law. There may also be circumstances in which we would withhold from 
the rulemaking record a respondent's identity, as allowable by law. If 
you want us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

II. Background

    You can find detailed background on the actions proposed in this 
document in a notice of final rulemaking pertaining to the Kentucky 
program published on May 10, 2000 (65 FR 29949).

III. Director's Findings and Proposed Action

    Pursuant to section 505(b) of SMCRA and 30 CFR 730.11(a), we 
propose to preempt and supersede certain portions of KRS 350.060(16). 
The complete text of KRS 350.060(16) reads as follows:
    Any permit renewal shall be for a term not to exceed the period of 
the original permit. Application for permit renewal shall be made at 
least one hundred twenty (120) days prior to the expiration of the 
valid permit. However, if a permit has expired or if a permit renewal 
application has not been timely filed, and the operator or permittee 
desires to continue the surface coal mining operation, the cabinet 
shall forthwith cause a notice of noncompliance to be issued. The 
notice of noncompliance shall be deemed to have been complied with, and 
the permit may be renewed, if the cabinet receives a permit renewal 
application within thirty (30) days of the receipt of the notice of 
noncompliance. Upon the submittal of a permit renewal application, the 
operator or permittee shall be deemed to have timely filed the permit 
renewal application and shall be entitled to continue, under the terms 
of the expired permit, the surface coal mining operation, pending the 
issuance of the permit renewal. Failure to comply with the remedial 
measures of the notice of noncompliance shall result in the cessation 
of the surface coal mining operation.
    The specific wording proposed for preemption and supersession are 
the phrase ``if a permit has expired or * * *,'' and the following 
sentence:

Upon the submittal of a permit renewal application, the operator or 
permittee shall be deemed to have timely filed the permit renewal 
application and shall be entitled to continue, under the terms of 
the expired permit, the surface coal mining operation, pending the 
issuance of the permit renewal.

    We are taking this action because we have initially determined that 
these provisions are inconsistent with section 506 of SMCRA and less 
effective than 30 CFR 843.11 based on the reasons cited under 
``Director's Findings'' in a separate notice of final rulemaking as 
noted above.
    We are now soliciting comments on this proposal to preempt and 
supersede the portions of KRS 350.060(16) that are quoted above. If we 
receive no evidence demonstrating why these portions should not be 
preempted and superseded, we will publish a final notice to effect the 
supersession of the provisions by Federal law. This action, if taken, 
will require the State to operate and enforce the approved program as 
if the preempted and superseded provisions did not exist.

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the

[[Page 39321]]

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 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, 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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed state regulatory program provision does not 
constitute a major federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget 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 
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. 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 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.
    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 a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: June 16, 2000.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 00-16088 Filed 6-23-00; 8:45 am]
BILLING CODE 4310-05-P