[Federal Register Volume 66, Number 158 (Wednesday, August 15, 2001)]
[Proposed Rules]
[Pages 42815-42817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20443]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-229-FOR]


Kentucky Regulatory Program

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

ACTION: Proposed rule; reopening of public comment period.

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SUMMARY: OSM is reopening the public comment period on a proposed 
amendment to the Kentucky regulatory program (Kentucky program) under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act). The proposed amendment consists of revisions to the Kentucky 
regulations pertaining to subsidence control. The amendment is intended 
to revise the Kentucky program to be consistent with the corresponding 
Federal regulations.

DATES: Written comments must be received by 4 p.m., [E.D.T.], August 
30, 2001.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand delivered to William J. Kovacic, Field Office 
Director, at the address listed below.
    Copies of the Kentucky program, the proposed amendment, a listing 
of any scheduled public hearings, and all written comments received in 
response to this document will be available for public review at the 
addresses listed below during normal business hours, Monday through 
Friday, excluding holidays. Each requester may receive one free copy of 
the proposed amendment by contacting OSM's Lexington Field Office.

William J. Kovacic, Director, Lexington Field Office, Office of Surface 
Mining Reclamation and Enforcement, 2675 Regency Road, Lexington, 
Kentucky 40503, Telephone: (859) 260-8400, E-Mail: [email protected]
Department of Surface Mining Reclamation and Enforcement, 2 Hudson 
Hollow Complex, Frankfort, Kentucky 40601, Telephone: (502) 564-6940.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director, 
Lexington

[[Page 42816]]

Field Office, Telephone: (859) 260-8400.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky 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 the Act * * *'' and 
``rules and regulations consistent with regulations issued by the 
Secretary'' pursuant to the Act. See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of this criteria, the Secretary of the Interior conditionally 
approved the Kentucky program on May 18, 1982.
    You can find background information on the Kentucky program, 
including the Secretary's findings, the disposition of comments, and 
the conditions of approval in the May 18, 1982, Federal Register (47 FR 
21404). You can find subsequent actions concerning the conditions of 
approval and program amendments at 30 CFR 917.11, 917.13, 917.15, 
917.16, and 917.17.

II. Description of the Proposed Amendment

    By letter dated January 25, 2001 (Administrative Record No. KY-
1502), Kentucky submitted a proposed amendment to its program 
consisting of changes to the Kentucky Administrative Regulations (KAR) 
at 405 KAR 18:210--Subsidence Control. Kentucky is responding to OSM's 
suspension of regulations pertaining to presubsidence surveys of 
structures and rebuttable presumption of causation of subsidence damage 
(64 FR 71652, December 22, 1999). Specifically, Kentucky proposes to: 
(a) Delete the requirement for presubsidence surveys of structures at 
section 1(4); (b) amend section 2(2) to change the minimum period of 
prior notice by the permittee to surface owners prior to undermining 
their property from 10 days to 30 days in emergency conditions; and (c) 
delete the rebuttable presumption of causation of subsidence damage in 
section 3(4).
    A Statement of Consideration of public comments dated April 11, 
2001, received by Kentucky, was filed April 12, 2001, with the Kentucky 
Legislative Research Committee. As a result of the comments, by letter 
dated May 7, 2001, Kentucky made changes to the original submission and 
included three minor amendments (Administrative Record No. KY-1513). 
The revisions were made at 405 KAR 18:210. By letter dated June 8, 
2001, (Administrative Record No KY-1513), Kentucky submitted the final 
version of the proposed amendment. Following are the changes to 405 KAR 
made in the final submission and not previously described in the March 
5, 2001, Federal Register notice. Deletions of previously proposed 
language will not be described in this notice nor will revisions 
concerning nonsubstantive wording, format, or organizational changes.
    Kentucky has revised 405 KAR 18:210 section 2(2) whereby the 
surface owner may waive the 30-day waiting requirement by a written 
waiver that is granted after the permittee has given the initial notice 
required under section 2(1) and that is separate from any other waiver, 
lease, deed, easement, agreement, or other conveyance of property 
rights. The emergency notice required in section 2(2) must still be 
given. The emergency notice itself cannot be waived, but the 
permittee's obligation to wait 30 days after that notice before 
undermining the property can be waived.
    On page 1 under NECESSITY, FUNCTION, AND CONFORMITY: Line 9, 
Kentucky deleted ``350.028(2)'' and added ``350.028(1)''.
    On page 2 under NECESSITY, FUNCTION, AND CONFORMITY: Line 18, after 
``of 1992'', Kentucky deleted ``whereas the'' and added ``The''.
    On page 4 Section 1(2)(a) Line 12, Kentucky deleted ``their'' and 
added ``the''.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. Specifically, 
OSM is seeking comments on the revisions described above to the 
original submission. If the amendment is deemed adequate, it will 
become part of the Kentucky program.
    Written Comments: If you submit written or electronic comments on 
the proposed rule during the 15-day comment period, they should be 
specific, should be confined to issues pertinent to the notice, and 
should 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 avoiding the use of special characters and 
any form of encryption. Please also include ``Attn: SPATS NO. KY-229-
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.
    Public Hearing: If you want to speak at the public hearing, you 
should contact the person listed under FOR FURTHER INFORMATION CONTACT 
by 4 p.m. (local time), on August 30, 2001. The location and time of 
the hearing will be arranged with those persons requesting the hearing. 
If no one requests an opportunity to speak at the public hearing, we 
will hold no hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who testifies at a public 
hearing provide us with a written copy of his or her testimony. The 
public hearing will continue on the specified date until all persons 
scheduled to speak have been given the opportunity to be heard. If you 
are in the audience and have not been scheduled to speak, and you wish 
to do so, you will be allowed to speak after those who have been 
scheduled.
    We will end the hearing after all persons scheduled to speak and 
persons present in the audience who wish to speak have been heard.
    Any disabled individual who has need for a special accommodation to 
attend a public hearing should contact the individual listed under FOR 
FURTHER INFORMATION CONTACT.
    Public Meeting: If only one person requests an opportunity to speak 
at a hearing, a public meeting, rather than a

[[Page 42817]]

public hearing, may be held. If you wish to meet with OSM 
representatives to discuss the proposed amendment, you may request a 
meeting by contacting the person listed under FOR FURTHER INFORMATION 
CONTACT. All such meetings will be open to the public and, if possible, 
notices of meetings will be posted at the locations listed under 
ADDRESSES. A written summary of each meeting will be made a part of the 
Administrative Record.

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 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 because 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.

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

    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; 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 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: July 5, 2001.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 01-20443 Filed 8-14-01; 8:45 am]
BILLING CODE 4310-05-P