[Federal Register Volume 67, Number 107 (Tuesday, June 4, 2002)]
[Proposed Rules]
[Pages 38446-38448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13986]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-237-FOR]


Kentucky Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing a proposed amendment to the Kentucky regulatory 
program (the ``Kentucky program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Kentucky proposes additions 
to its statutes about incidental coal removal and intends to revise its 
program to be consistent with SMCRA. This document gives the times and 
locations that the Kentucky program and proposed amendment to that 
program are available for your inspection, the comment period during 
which you may submit written comments on the amendment, and the 
procedures that we will follow for the public hearing, if one is 
requested.

DATES: We will accept written comments on this amendment until 4:00 
p.m., e.s.t. July 5, 2002. If requested, we will hold a public hearing 
on the amendment on July 1, 2002. We will accept requests to speak at a 
hearing until 4:00 p.m., e.s.t. on June 19, 2002.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to William J. Kovacic at the address 
listed below.
    You may review copies of the Kentucky program, this amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Lexington Field Office. William J. Kovacic, 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, Telephone: (859) 
260-8400. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program.
II. Description of the Proposed Amendment.
III. Public Comment Procedures.
IV. 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 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 of 
the Kentucky program 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, 917.12, 917.13, 917.15, 
917.16, and 917.17.

[[Page 38447]]

II. Description of the Proposed Amendment

    By letter dated April 12, 2002 (Administrative Record No. KY-1529), 
Kentucky sent us an amendment to its program under SMCRA (30 U.S.C. 
1201 et seq.). Kentucky sent the amendment at its own initiative. The 
full text of the amended language follows. The language comprises a new 
section of the Kentucky Revised Statutes at Chapter 350 and is 
referenced as Kentucky House Bill 405.
    Kentucky defines ``private land'' as ``property that is owned by a 
not-for-profit organization or by a noncommercial private owner and is 
subject to the construction of improvements on that property, and 
includes land that requires alteration, modification, excavation, or 
landscaping in order to make it relate to, and support the function of, 
a facility or improvement. Private land includes but is not limited to 
a parking lot for a church, a recreational facility or court for a 
school, and land alteration related to improvements to a private 
residence or other private use.''
    Kentucky further specifies that ``removal of coal on private land, 
incidentally and as a necessary requirement of facility construction, 
or as a consequence of the excavation or landscaping required to make 
the land support the intended function of a facility under 
construction, shall not require the owner of that private land to 
obtain a surface mining permit as required under this chapter, or a 
mining licenses as required under this chapter, if: (a) The coal 
removed is five thousand tons or less; (b) the coal removed is donated 
to a charitable, educational, or governmental organization, or the coal 
is sold and the proceeds are donated to such an organization; and (c) 
the landowner notifies the cabinet at the time that coal is first 
encountered and prior to removal, and if after inspection and review of 
site plans, construction contracts, or other indicia, the cabinet 
determines that the proposed project is eligible for this exemption. 
The cabinet may require implementation of such best management 
practices as are necessary to ensure compliance with stormwater 
discharge limits.''
    Kentucky is also requiring that, ``the cabinet within ten days of 
the effective date of this Act, seek an opinion from the Federal Office 
of Surface Mining relating to the provisions of this section and shall 
not implement or administer the provisions of subsection (2) of this 
section until July 1, 2004. However, if the cabinet receives a Federal 
Office of Surface Mining determination that subsections (1) to (2) of 
this section, and any related administrative regulations of the 
cabinet, are consistent with, or otherwise not in violation of, the 
Federal Surface Mining Control and Reclamation Act of 1977, the cabinet 
may implement and administer the provisions of subsection (2) of this 
section prior to July 1, 2004.''

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We will not consider or respond to 
your comments when developing the final rule if they are received after 
the close of the comment period (see DATES). We will make every attempt 
to log all comments into the administrative record, but comments 
delivered to an address other than the Lexington Field Office may not 
be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: SPATS No. KY-231-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

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their 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 review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. June 19, 
2002. If you are disabled and need special accommodations to attend a 
public hearing, contact the person listed under FOR FURTHER INFORMATION 
CONTACT. We will arrange the location and time of the hearing with 
those persons requesting the hearing. If no one requests an opportunity 
to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. 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 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)

[[Page 38448]]

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. 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, individual 
industries, Federal, State, or local governmental 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: April 26, 2002.
George J. Rieger,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 02-13986 Filed 6-3-02; 8:45 am]
BILLING CODE 4310-05-P