[Federal Register Volume 67, Number 88 (Tuesday, May 7, 2002)]
[Rules and Regulations]
[Pages 30549-30553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11212]


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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, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving an amendment to the Kentucky permanent regulatory 
program (the Kentucky program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Kentucky proposed revisions 
to the State regulations pertaining to subsidence control. The 
amendment is intended to render the Kentucky program consistent with 
the corresponding Federal regulations and to provide additional 
specificity.

EFFECTIVE DATE: May 7, 2002.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Field Office 
Director Telephone: (859) 260-8400. Address: Office of Surface Mining 
Reclamation and Enforcement, 2675 Regency Road, Lexington, Kentucky 
40503.

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

    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 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 conditions of 
approval in the May 18, 1982 Federal Register (47 FR 21404). You can 
also find later actions concerning Kentucky's program and program 
amendments at 30 CFR 917.11, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

    By letter dated January 25, 2001 (Administrative Record No. KY-
1502), the Kentucky Department of Surface Mining Reclamation and 
Enforcement sent us an amendment to the Kentucky program. In its 
letter, Kentucky noted that on December 22, 1999, we suspended and 
modified portions of 30 CFR 784.20 and 30 CFR 817.121(c)(4)(i) through 
(iv) pursuant to an order of the United States Court of Appeals for the 
District of Columbia Circuit. Kentucky proposed to amend its rules in 
the same manner that we modified our regulations. The amendment, at 
Title 405 of the Kentucky Administrative Regulations (KAR) Chapter 
18:210, deleted the provision that required presubsidence surveys of 
structures at Section 1(4) and the rebuttable presumption of causation 
of subsidence damage at Section 3(4).
    Kentucky also submitted changes to Section 2(2) of 405 KAR 18:210, 
deleting references to the presubsidence survey of structures and 
adding a provision allowing property owners to waive the 30-day mining 
moratorium following the emergency notice. With the exception of the 
deletion of the references to presubsidence structural surveys, the 
changes to Section 2(2) do not correspond to any federal regulatory 
changes.
    We announced receipt of the proposed amendment in the March 5, 
2001, Federal Register (66 FR 13275). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy (Administrative Record 
No. KY-1519). The public comment period ended on April 4, 2001.
    By letter dated June 8, 2001 (Administrative Record No. KY-1513), 
Kentucky submitted the final version of the proposed amendment.
    We reopened the public comment period in the August 15, 2001, 
Federal Register (66 FR 42815) and provided an opportunity for a public 
hearing or meeting on the adequacy of the revised amendment. 
(Administrative Record No. KY-1515). We did not hold a public hearing 
or meeting because no one requested one. The public comment period 
ended on August 30, 2001. We received comments from one industry group, 
one Federal agency, and two private citizens.

Procedural History of Suspended Federal Rules

    The Energy Policy Act was enacted October 24, 1992, Pub. L. 102-
486, 106 Stat. 2776 (1992) (hereinafter, The Energy Policy Act or 
EPAct). Section 2504 of that Act, 106 Stat. 2776, 3104, amends SMCRA, 
30 U.S.C. 1201 et seq. Section 2504 of EPAct added a new section 720 to 
SMCRA. Section 720(a)(1) requires that all underground coal-mining 
operations conducted after October 24, 1992, promptly repair or 
compensate for material damage to non-commercial buildings and occupied 
residential dwellings and related structures as a result of subsidence 
due to underground coal mining operations. Repair of damage includes 
rehabilitation, restoration, or

[[Page 30550]]

replacement of the structures identified by section 720(a)(1), and 
compensation must be provided to the owners in the full amount of the 
diminution in value resulting from the subsidence. Section 720(a)(2) 
requires prompt replacement of certain identified water supplies, which 
have been adversely affected by underground coal mining operations. 
Under section 720(b), the Secretary of the Interior was required to 
promulgate final regulations to implement the provisions of section 
720(a).
    On September 24, 1993 (58 FR 50174), OSM published a proposed rule 
to amend the regulations applicable to underground coal mining and 
control of subsidence-caused damage to lands and structures through the 
adoption of a number of permitting requirements and performance 
standards. We adopted final regulations on March 31, 1995 (60 FR 
16722).
    The rules were challenged by the National Mining Association in the 
District Court for the District of Columbia and in the U.S. Court of 
Appeals for the District of Columbia Circuit. On April 27, 1999, the 
U.S. Court of Appeals issued a decision vacating certain portions of 
the regulatory provisions of the subsidence regulations. See National 
Mining Association v. Babbitt, 173 F.3d 906 (1999). We suspended those 
regulatory provisions that are inconsistent with the rationale provided 
in the U.S. Court of Appeals' decision. The following Federal 
provisions were suspended.

1. 30 CFR 817.121(c)(4)(i) through (iv)

    This regulation provided that if damage to any non-commercial 
building or occupied residential dwelling or structures related thereto 
occurred as a result of earth movement within an area determined by 
projecting a specific angle of draw from the outer-most boundary of any 
underground mine workings to the surface of the land, a rebuttable 
presumption would exist that the permittee caused the damage. The 
presumption typically would have applied to a 30-degree angle of draw. 
Once the presumption was triggered, the burden of going forward shifted 
to the mine operator to offer evidence that the damage was attributable 
to another cause. The purpose of this regulatory provision was to set 
out a procedure under which damage occurring within a specific area 
would be subject to a rebuttable presumption that subsidence from 
underground mining was the cause of any surface damage to non-
commercial buildings or occupied residential dwellings and related 
structures.
    The Court of Appeals vacated, in its entirety, this rule that 
established an angle of draw and that created a rebuttable presumption 
that damage to EPAct protected structures within an area defined by an 
``angle of draw'' was in fact caused by the underground mining 
operation. 173 F.3d at 913.
    In reviewing the regulation, the Court rejected the Secretary's 
contention that the angle of draw concept was reasonably based on 
technical and scientific assessments and that it logically connected 
the surface area that could be damaged from earth movement to the 
underground mining operation. The angle of draw provided the basis for 
establishing the surface area within which the rebuttable presumption 
would apply. The Secretary had explained that the rebuttable 
presumption merely shifted the burden of document production to the 
operator in evaluating whether the damage was actually caused by the 
underground mining operation within the surface area defined by the 
angle of draw. The Court nevertheless held that the angle of draw was 
irrationally broad and that the scientific facts presented did not 
support the logical inference that damage to the surface area would be 
caused by earth movement from underground mining within the area.
    Based on the conclusion that there was no scientific or technical 
basis provided for establishing a rational connection between the angle 
of draw and surface area damage, the Court further concluded that the 
rebuttable presumption failed. In reviewing the rebuttable presumption 
requirement, the Court held ``an evidentiary presumption is `only 
permissible if there is sound and rational connection between the 
proved and inferred facts, and when proof of one fact renders the 
existence of another fact so probable that it is sensible and 
timesaving to assume the truth of [the inferred] fact * * * until the 
adversary disproves it.' '' That is to say, for the presumption to be 
permissible, the facts would have to demonstrate that the earth 
movement from the underground mining operation ``more likely than not'' 
caused the damage at the surface. See National Mining Association, 173 
F.3d at 906-910. In compliance with the Court of Appeals' decision of 
April 27, 1999, we suspended 30 CFR 817.121(c)(4)(i) through (iv).
    Paragraph (v) within this section applies generally to the types of 
information that must be considered in determining the cause of damage 
to an EPAct protected structure and is not limited to or expanded by 
the area defined by the angle of draw. Therefore, paragraph (v) remains 
in force.

2. Section 784.20(a)(3)

    This regulatory provision required, unless the owner denied the 
applicant access for such purposes, a survey, which identified certain 
features. First, the survey had to identify the condition of all non-
commercial buildings or occupied residential dwellings and related 
structures, which were within the area, encompassed by the applicable 
angle of draw and which might sustain material damage, or whose 
reasonably foreseeable use might be diminished, as a result of mine 
subsidence. Second, the survey had to identify the quantity and quality 
of all drinking, domestic, and residential water supplies within the 
proposed permit area and adjacent area that could be contaminated, 
diminished, or interrupted by subsidence. In addition, the applicant 
was required to notify the owner in writing that denial of access would 
remove the rebuttable presumption that subsidence from the operation 
caused any post mining damage to protected structures that occurred 
within the surface area that corresponded to the angle of draw for the 
operation. (See discussion of angle of draw above). This regulatory 
provision was challenged insofar as it required a specific structural 
condition survey of all EPAct protected structures. The Court of 
Appeals vacated the specific structural condition survey regulatory 
requirement in its decision on April 27, 1999. In reviewing the 
Secretary's requirement, the Court clearly upheld the Secretary's 
authority to require a pre-subsidence structural condition survey of 
all EPAct protected structures. The Court accepted the Secretary's 
explanation that this specific structural condition survey was 
necessary, among other requirements, in order to determine whether a 
subsidence control plan would be required for the mining operation. 
However, because of the Court's ruling on the ``angle of draw'' 
regulation discussed above, it vacated the requirement for a specific 
structural condition survey because it was tied directly to the area 
defined by the ``angle of draw.''
    In compliance with the Court of Appeals'' decision, we suspended 
that portion of 30 CFR 784.20(a)(3) which required a specific 
structural condition survey of all EPAct protected structures. The 
remainder of this section continues in force to the extent that it 
applies to the EPAct protected water supplies survey and any technical 
assessments or engineering evaluations necessarily related thereto.

[[Page 30551]]

III. Director's Findings

    Following are the findings we made concerning Kentucky's amendment 
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. As 
discussed below, we are approving the amendment.

Deletion of 405 KAR18:210 Section 1(4)(a)-(d)

    Section 1(4)(a) of 405 KAR 18:210 requires presubsidence surveys of 
the specific structural conditions of protected structures within the 
projected angle of draw. Section 1(4)(b) provides for filing of written 
objections to the survey by property owners. Section 1(4)(c) prohibits 
mining within 1,500 feet horizontally of a structure for which a survey 
is required, unless the permittee submits the survey or demonstrates 
that the property owner refused access to the site for purposes of 
conducting the survey. Section 1(4)(d) allows the permittee to request 
an alternative to the temporary 1,500-foot buffer zone, based upon the 
angle of draw.
    Paragraph (a) of Section 1(4) is substantively identical to the 
suspended portion of the Federal regulations at 30 CFR 784.20(a)(3). 
Paragraphs (b), (c) and (d) of Section 1(4) have no direct Federal 
counterparts. However, they relate only to the presubsidence structural 
survey requirement of paragraph (a). Because these State regulations 
are either substantively identical to or related only to the suspended 
portion of the Federal regulations at 30 CFR 784.20(a)(3), we find that 
their deletion will not render the Kentucky program inconsistent with 
SMCRA or the Federal regulations. Therefore, the deletions are 
approved.

Deletion of 405 KAR 18:210 Section 3(4)

    Section 3(4) of 405 KAR 18:210 establishes a rebuttable presumption 
that damage to protected structures resulting from earth movement 
within the projected angle of draw was caused by the permittee. This 
provision is substantively identical to the suspended Federal 
regulations at 30 CFR 817.121(c)(4)(i) through (iv). Therefore, we find 
that its deletion will not render the Kentucky program inconsistent 
with SMCRA or the Federal regulations. We are approving the deletion.

Revision of 405 KAR 18:210 Section 2(2)

    Kentucky also proposes to amend 405 KAR 18:210, Section 2(2), which 
requires notice to surface owners before mining beneath their property. 
Section 2(1) requires the permittee to notify, in writing, all 
residents and occupants of surface properties and structures within the 
area above underground workings that mining will occur beneath their 
property or structures. The notification must be by mail, and must be 
sent to the owners or occupants at least 90 days prior to mining 
beneath the property or structures. Section 2(2) provides an exception 
to the minimum notification time in Section 2(1) if ``subsequent 
emergencies or other unforeseen conditions in underground mining 
necessitate mining beneath such property or residence sooner than 
ninety (90) days after such notice.'' If an emergency or other 
unforeseen condition exists, the State rule requires an additional 
written notice to the owner or resident that mining will occur. It also 
provides that ``in no case shall mining be conducted beneath the 
property or residence sooner than thirty (30) days after such 
additional notice is given.''
    Kentucky proposes to amend Section 2(2) to allow the property owner 
to waive the 30-day moratorium on mining. The waiver must be expressly 
given, in writing, and ``shall be granted after the initial notice 
required under subsection (1) of this section has been given, and shall 
be separate from any other waiver, lease, deed, easement, agreement, or 
other conveyance of property or rights.'' Kentucky has stated that both 
the initial notice under Section 2(1) and subsequent notice under 
Sections 2(2) are not waivable. Rather, the property owner may waive 
only the 30-day mining moratorium that commences after the subsequent 
notice. (See April 11, 2001, Statement of Consideration, Administrative 
Record No. KY-1513).
    The Federal regulations at 30 CFR 817.122 require underground mine 
operators to provide written notice by mail, at least 6 months prior to 
mining, to all owners and occupants of surface property and structures 
above underground workings. The regulatory authority may, however, 
approve a notice period of less than 6 months after considering whether 
the chosen notice period is sufficient to ``allow surface owners to 
take steps to protect their property.'' (48 FR 24638, 24647, June 1, 
1983).
    Because Kentucky does not propose to allow waiver of either the 
initial or subsequent, i.e., ``emergency'' notice, a property owner 
will have at least 30 days warning, if he wants it, of the impending 
underground mining. As such, the owner will have an opportunity, if he 
so desires, to take steps necessary to protect that property. 
Therefore, the allowance of a waiver, so long as it is expressly given 
in writing, does not frustrate the purpose of this regulation, which is 
to provide a landowner with sufficient time to protect his property if 
he wishes to do so. For this reason, the proposed amendment does not 
render Section 2(2) inconsistent with the Federal regulations at 30 CFR 
817.122, and it is therefore approved. However, for the reasons 
discussed below in our responses to the comments of the National 
Citizens' Coal Law Project, we are approving the waiver provision only 
to the extent that, where more than one entity owns the land or mineral 
resources, all such owners must sign express waivers of the 30-day 
period before the regulatory authority may grant the waiver.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment. One public comment 
was received from National Citizen's Coal Law Project in a letter dated 
August 30, 2001 (Administrative Record No. KY-1517). The commenter 
stated that the regulation, at 405 KAR 18:210, Section 2(2), is 
inconsistent with and less effective than the corresponding Federal 
counterpart requirement at 30 CFR 817.122 because it provides for a 30-
day notice period prior to mining in some instances, whereas the 
federal regulation requires at least 6 months notice. Specifically, the 
commenter charged that ``Kentucky's regulatory approach has been 
eroding the timeframe set by Congress from six months to three months, 
to one month, and now proposes to eliminate entirely the waiting 
period.'' Therefore, the commenter stated that the amendment must be 
disapproved.
    We disagree. First, we previously approved the 30-day emergency 
notice period in our original approval of the Kentucky program (47 FR 
at 21412, Finding 13.21, in which we approved 405 KAR 18:210E, Section 
2). Second, Kentucky does not propose to eliminate the notice period 
entirely, as the commenter alleges, unless the property owner waives 
his right to use that period to take steps necessary to protect his 
property from mining. Therefore, as explained in the finding above, the 
purpose of the regulation is still served.
    The commenter also objected to the allowance of a waiver of the 30-
day notice period prior to mining. Specifically, the commenter stated 
the following: (1) Where the landowner who resides in the dwelling 
refuses to sign a waiver or lease but a non-resident co-tenant signs 
such a lease and a waiver of the 30-day notice, this regulation

[[Page 30552]]

could allow immediate undermining despite the objection of the surface 
owner; (2) The existence of past fraud in submission of waivers also 
demands that a time period be allowed to assure that undermining does 
not occur based on a fraudulent ``waiver'' of the 30-day period and; 
(3) Once undermined, the aggrieved party who opposed mining cannot be 
made ``whole.'' Their property and interests are irreparably altered. 
Allowing the waiver of any time frame based on an ``owner'' waiver, the 
commenter indicated, invites more mischief and more hardship for co-
tenants who are often subject to coal companies purchasing or leasing a 
minor fractional interest and then mining the property.
    We agree that the commenter's concerns have some historical 
validity. Therefore, our approval of this waiver provision must not be 
construed to allow the outcomes feared by the commenter. In other 
words, as noted in the finding above, we are approving the waiver 
provision only to the extent that, where more than one entity owns the 
land or mineral resources, all such owners must sign express waivers of 
the 30-day period before the regulatory authority may grant the waiver. 
Moreover, we believe that safeguards in the proposal itself may assuage 
the commenter's concern about fraudulent waivers. For example, the 
regulation provides that the waiver may be granted only after the 
permittee has made the initial notice as required, and the waiver must 
be separate from any other waiver, lease, deed, easement, agreement, or 
other conveyance of property or rights. These restrictions will help 
insure that the owner is aware, at the time he grants the waiver, of 
the current circumstances and the notice to which he is entitled. 
Moreover, because the regulatory authority will receive copies of the 
waivers, it can verify the names of the waiving property owners by 
checking them against the names of surface and mineral owners provided 
in the permit application. While these safeguards do not guarantee that 
a fraudulent waiver will never be accepted, such a guarantee simply 
does not exist. Indeed, regulatory authorities must rely to some degree 
upon the veracity of the permittee in other instances, such as the 
acceptance of information provided in a permit application itself. 
Finally, we note again that the permittee must give the initial 90-day 
notice and an additional notice as required when it wishes to undermine 
a property sooner than 90 days after the initial notice. The owner 
cannot waive the permittee's obligation to provide these notices.

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 Kentucky program (Administrative 
Record No. KY-1515). The U.S. Department of Labor, Mine Safety and 
Health Administration (MSHA) responded in a letter dated August 27, 
2001 (Administrative Record No. KY-1516). The commenter indicated that 
the proposed changes should have no foreseeable impact concerning MSHA.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (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.). This amendment does not pertain 
to air or water quality standards. Therefore, we did not ask the EPA 
for concurrence.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from EPA (Administrative Record No. KY-1515). 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 August 22, 2001, we requested comments on Kentucky's 
amendment (Administrative Record No. KY-1515), but neither entity 
responded to our request.

V. Director's Decision

    Based on the above findings, we approve the Kentucky amendment, as 
revised on June 8, 2001.
    To implement this decision we are amending the Federal regulations 
at 30 CFR part 917, which codifies decisions concerning the Kentucky 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503 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 regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

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 under Executive Order 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 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

[[Page 30553]]

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 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 27, 2002.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR 917 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 a new entry to the table in 
chronological order to read as follows:


Sec. 917.15  Approval of Kentucky regulatory program amendments.

* * * * *

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 Original amendment submission date   Date of final publication                Citation/description
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*                  *                  *                  *                  *                  *
                                                        *
January 25, 2001...................  May 7, 2002................  405 KAR 18:210, Sections 1(4), 2(2), and 3(4).
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[FR Doc. 02-11212 Filed 5-6-02; 8:45 am]
BILLING CODE 4310-05-P