[Federal Register Volume 66, Number 247 (Wednesday, December 26, 2001)]
[Rules and Regulations]
[Pages 66314-66317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31535]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-221-FOR]


Kentucky Regulatory Program

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

ACTION: Final rule.

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

SUMMARY: OSM is approving an amendment to the Kentucky regulatory 
program (Kentucky program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). Kentucky is proposing revisions to the 
Kentucky Administrative Regulations (KAR) pertaining to the general 
requirements for performance bonds and liability insurance. Kentucky 
intends to revise its program to be consistent with the corresponding 
Federal regulations.

EFFECTIVE DATE: December 26, 2001.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Field Office 
Director, Lexington Field Office, 2675 Regency Road, Lexington, 
Kentucky 40503. Telephone: (859) 260-8400. Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION:

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

I. Background on the Kentucky Program

    Section 503(a) of SMCRA 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

[[Page 66315]]

surface coal mining and reclamation operations in accordance with the 
requirements of the SMCRA * * *'' and ``rules and regulations 
consistent with regulations issued by the Secretary'' pursuant to the 
SMCRA. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these 
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). Subsequent actions concerning the 
Kentucky program and previous amendments are codified at 30 CFR 917.11, 
917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

    By letter dated May 4, 1999 (Administrative Record No. KY-1459), 
Kentucky submitted a proposed amendment to its program at 405 KAR 
10:010 under SMCRA (30 U.S.C. 1201 et seq.). By letter dated August 20, 
1999 (Administrative Record No. KY-1465), Kentucky advised us it 
revised section 2(2) of 405 KAR 10:010 by inserting references to 
sections 5(1)(a) and 5(1)(g) where the new bond forms are incorporated 
by reference. The final regulation and bond forms were otherwise 
unchanged. OSM did not re-open the public comment period because the 
revision did not constitute a substantive change to the original 
submission.
    We announced receipt of the proposed amendment in the June 1, 1999, 
Federal Register (64 FR 29247), invited public comment, and provided an 
opportunity for a public hearing on the adequacy of the proposed 
amendment. The public comment period closed on July 1, 1999. We did not 
receive any comments and we did not hold a public hearing because no 
one requested one.

III. Director'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. Any revisions that we do not specifically 
discuss below concern nonsubstantive wording changes.
    At section 2(2), Kentucky adds language which clarifies that for 
surface coal mining operations on non-Federal lands the applicant shall 
file the bond form designated at section 5(1)(a) and for coal mining 
operations on Federal lands the applicant shall file the bond form 
designated at section 5(1)(g). This amendment does not change the 
substantive meaning of the rule; rather it further clarifies the intent 
of the rule by defining which bond form is used for what type of land 
(non-Federal vs. Federal lands). We therefore find that with this 
change the State provision is consistent with the Federal provisions at 
30 CFR 800.11(a) which requires a permit applicant to file a bond on a 
form prescribed and furnished by the regulatory authority. The change 
is therefore approved.
    At section 5(1), Kentucky revises the following titles to the 
documents it incorporates by reference: Irrevocable Standby Letter of 
Credit--Form SME-72 (July 1994); Certificate of Liability Insurance--
Form SME-29; Notice of Cancellation, Non-Renewal or Change of Liability 
Insurance--Form SME-30; and Escrow Agreement--Form SME-64, (May 1991). 
The incorporation by reference of these documents was previously 
approved by OSM on December 17, 1996, at 61 FR 66220-66225. The 
revisions do not alter the requirements of the previously approved 
provisions in the Kentucky regulations. Since these revisions are 
nonsubstantive, we find that they will not make the Kentucky 
regulations inconsistent with the Federal regulations.
    Kentucky also revises the edition date to the Confirmation of 
Irrevocable Standby Letter of Credit--Form SME-72-A, from April 1991 to 
July 1994, which is incorporated by reference at section 5(1). Nothing 
else on the form was changed. The incorporation by reference of this 
form was also approved by OSM on December 17, 1996. The revision does 
not alter the requirements of the previously approved provision in the 
Kentucky regulations. Since this is a nonsubstantive change, we find 
that it will not make the Kentucky regulation inconsistent with the 
Federal regulations.
    Kentucky is also incorporating by reference and revising the form: 
Performance Bond--Form SME-42, (June 1999). Revised form SME-42 is a 
standard performance bond form for Non-Federal Lands as required by KRS 
350.060(11) and section 2 of this regulation. It specifies the terms 
and conditions of the bond, including the obligations of the principal 
and surety and bond release or forfeiture conditions. It identifies 
among other things: the permit or application number, the amount and 
type of bond, and the acreage and location of the bonded land. The 
following deletions from the original form were made: the requirement 
that a resident Kentucky agent countersign a surety bond executed by an 
out-of-State surety (KRS 304.3-250 originally required it, this section 
was repealed on July 15, 1998) and the requirement to enter the name of 
the community near the lands associated with the bond. The June 1999 
edition replaces the February 1991 edition. There is no Federal 
counterpart to either requirement that Kentucky proposes to delete. 
Therefore, the deletion of both the countersignature and the name of 
the nearby community do not render the Kentucky program less effective 
than the Federal rules.
    New form SME-42-F is a standard performance bond form for Federal 
Lands as required by KRS 350.060(11), KRS 350.064(11) and section 2 of 
this regulation. Pursuant to 523(c) of SMCRA, Kentucky and the 
Secretary of the Department of the Interior entered into a Cooperative 
Agreement (the ``Agreement'') for the regulation of surface coal mining 
and reclamation operations on Federal lands in Kentucky. See 63 FR 
53252 (October 2, 1998). Article IX of the Agreement requires that the 
performance bond form for Federal lands, state on its face, that in the 
event the Agreement is terminated, the portion of the bond covering 
Federal lands shall be assigned to the United States. The Agreement 
also required the bond form to state that if subsequent to the 
forfeiture of the bond, the Agreement is terminated, any unspent or 
uncommitted proceeds of the bond covering the Federal lands shall be 
assigned and forwarded to the United States. The new form includes 
these requirements on the form. The new form also specifies the terms 
and conditions of the bond, including the obligations of the principal 
and surety and bond release and forfeiture conditions. It identifies, 
among other things, the permit or application number, the amount and 
type of bond and the acreage and location of the bonded land.
    This form satisfies the requirements in the Agreement and is not 
inconsistent with the Federal rules since it implements the bonding 
requirements. The change is therefore approved.
    At section 5(2), Kentucky provides for the inspection and 
reproduction of the above materials. There is no direct Federal 
counterpart. This amendment makes the bond form available to the 
public. We therefore find that with this change the State provision is 
not inconsistent with the Federal rules. The change is therefore 
approved.

[[Page 66316]]

IV. Summary and Disposition of Comments

Public Comments

    We solicited public comments on the amendment. No comments were 
submitted.

Federal Agency Comments

    On March 1, 2000, we asked for comments from various Federal 
agencies who may have an interest in the Kentucky amendment 
(Administrative Record No. KY-1492) according to 30 CFR 
732.17(h)(11)(i) and section 503(b) of SMCRA. No one responded.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get a 
written agreement 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.). Since none of the proposed 
amendment provisions relate to air or water quality, we did not ask EPA 
to agree on the amendment. We did ask EPA to comment but they did not 
respond.

V. Director's Decision

    Based on the above findings, we approve the proposed amendment 
submitted by Kentucky on May 4, 1999, and revised on August 20, 1999.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 917, codifying decisions concerning the Kentucky 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) of 
SMCRA 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 SMCRA and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

Effect of the 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, 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 that Kentucky enforce only such 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 regulation.

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, 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.

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 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,

[[Page 66317]]

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 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 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 24, 2001.
Roger Calhoun,
Acting Regional Director, Appalachian Regional Coordinating 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 in the table in paragraph (a) by 
adding a new entry in chronological order by ``Date of Final 
Publication'' to read as follows:


Sec. 917.15  Approval of Kentucky regulatory program amendments.

    (a) * * *

------------------------------------------------------------------------
    Original amendment          Date of final
      submission date            publication        Citation/description
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
May 4, 1999...............  December 26, 2001      KAR 10:010 Sections
                                                    2(2), 5(1), 5(2) and
                                                    bond forms SME-42(6/
                                                    99 ed.) and SME-42-
                                                    F(6/99 ed.)
------------------------------------------------------------------------

* * * * *
[FR Doc. 01-31535 Filed 12-21-01; 8:45 am]
BILLING CODE 4310-05-P