[Federal Register Volume 67, Number 108 (Wednesday, June 5, 2002)]
[Proposed Rules]
[Pages 38621-38625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14077]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-216-FOR]


Kentucky Regulatory Program

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

ACTION: Proposed rule; reopening of public comment period.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are reopening the public comment period on 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 has submitted additional explanatory information pertaining to 
a previously proposed amendment about subsidence, water replacement, 
impoundments, hydrology, and permits. Kentucky intends to revise its 
program to be consistent with the corresponding Federal regulations.

DATES: We will accept written comments on this amendment until 4:00 
p.m., [e.s.t.] June 20, 2002.

ADDRESSES: You should mail or hand deliver written comments to William 
J. Kovacic at the address listed below.
    You may review copies of the Kentucky program, this amendment, 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 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 of the Kentucky program in the May 18, 1982, Federal Register 
(48 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.

II. Description of the Proposed Amendment

    By letter dated July 30, 1997 (administrative record no. KY-1410), 
Kentucky sent us a proposed amendment to its program. The full text of 
the program amendment is available for you to read at the locations 
listed above under ADDRESSES. The provisions of the Kentucky 
Administrative Regulations (KAR) at section 405 that are being revised 
are: 8:001, 8:030, 8:040; 16:001, 16:060, 16:090, 16:100, 16:160, 
18:001, 18:060, 18:090, 18:100, 18:160, and 18:210. The proposed 
amendment was announced in the September 5, 1997, Federal Register (62 
FR 46933). On November 14, 1997, a Statement of Consideration of public 
comments was filed with the Kentucky Legislative Research Committee. As 
a result of the comments and by letter dated March 4, 1998, Kentucky 
made changes to the original submission (administrative record no. KY-
1422). The revisions were made at 405 KAR 8:040, 16:060, 18:060, and 
18:210. By letter dated March 16, 1998, Kentucky made additional 
changes to the original submission (administrative record no. KY-1423). 
The revisions were made at 8:001, 8:030, 8:040, 16:001, 16:060, 16:090, 
16:100, 16:160, 18:001, 18:060, 18:090, 18:100, 18:160, and 18:210. By 
letter dated July 14, 1998, Kentucky submitted a revised version of the

[[Page 38622]]

proposed amendments (administrative record no. KY-1431). All the 
revisions, except for a portion of those submitted March 16, 1998, were 
announced in the August 26, 1998, Federal Register (63 FR 45430). The 
March 16, 1998, revisions not included in previous notices will be 
included in this document.
    During our review of the amendment, we identified concerns relating 
to the provisions at 405 KAR 8:001, 8:030, 8:040, 16:001, 16:060, 
16:090, 16:100, 16:160, 18:001, 18:060, 18:090, 18:100, 18:160, and 
18:210. We notified Kentucky of the concerns by letter dated May 26, 
2000 (administrative record no. KY-1479). Kentucky responded in a 
letter dated August 10, 2000, and submitted additional explanatory 
information (administrative record no. KY-1489).

A. Response to Issue Letter

1. Water Replacement and Subsidence Issues
    a. Kentucky law and regulations do not use the term ``drinking, 
domestic, or residential'' and therefore do not define it. Our law 
and regulations for both surface and underground mines, and the 
federal law and regulations for surface mines only, refer to water 
supplies for ``domestic, agricultural, industrial, or other 
legitimate use,'' whereas the federal law and regulations for 
underground mines refers more narrowly to ``drinking, domestic, or 
residential'' water supplies. Our program is more inclusive and 
therefore more protective than the federal program.
    The federal definition of ``replacement of water supply'' is not 
included in our program. The federal definition is largely a 
collection of substantive requirements. The Kentucky Legislative 
Research Commission's Informational Bulletin 118, Kentucky 
Administrative Regulations, June 1996, pp. 60-63, states that 
substantive requirements should not be placed in a definition. 
Therefore, the cabinet promulgated the provisions of the federal 
definition as substantive requirements in 405 KAR 16:060 Section 8 
and 405 KAR 18:060 Section 12.
    b. Our regulations use ``proximately'' because KRS 350.421(2) 
uses ``proximately resulting from the surface or underground coal 
mine.'' 30 U.S.C. 1307(b) uses ``proximately resulting from such 
surface coal mine operation,'' and 30 U.S.C. 1309(a)(2) uses 
``resulting from underground coal mining operations.'' The 
definition of ``proximate cause'' is, in short, ``direct cause,'' 
which is not significantly different in practice from ``resulting 
from.'' We do not believe SMCRA or the federal regulations intend a 
different standard of causation for surface and underground mines.
    The term ``proximate cause'' has been defined in Kentucky case 
law as follows:
    Proximate cause is to be determined as a fact in view of the 
circumstances attending it. (Citation omitted.) It is that cause 
which naturally leads to, and which might have been expected to have 
produced, the result. The connection of cause and effect must be 
established. And if a cause is remote, and only furnished the 
condition or occasion of the injury, it is not the proximate cause 
thereof. (Citation omitted.) The proximate cause is a cause which 
would probably, according to the experience of mankind, lead to the 
event which happened, and remote cause is a cause which would not, 
according to such experience, lead to such an event.

Stevens' Adm'r v. Watt, Ky., 99 S.W.2d 753, 755, 266 Ky. 608 (1936)

    c. The proposal that a notice of noncompliance be issued 
whenever the cabinet determines that the permittee has damaged a 
water supply was removed during the legislative review part of the 
promulgation process. The final regulation requires that the cabinet 
promptly notify the permittee of receipt of a complaint. After 
appropriate investigation, if the cabinet determines the permittee 
damaged the water supply it notifies the permittee of his obligation 
to replace the water supply and the timetables for replacement. The 
replacement timetables are not triggered by the mere receipt of a 
complaint by the permittee or the cabinet, nor are they triggered by 
the cabinet's initial notice to the permittee that a complaint has 
been received. The replacement timetables are triggered by the 
cabinet's notice to the permittee that water loss has occurred, that 
the permittee caused it, and that he has the obligation to replace 
the supply. It is simply unfair and unworkable for legally binding 
timetables for replacement, particularly the 48-hour emergency 
replacement of domestic water supplies, to begin running upon a mere 
complaint. There are many cases where alleged impacts to water 
supplies prove to be nonexistent or to be the result of factors such 
as drought or inadequate well systems.
    With regard to the time period to be used as a basis for payment 
of increased operation and maintenance expenses, the ``predicted 
useful life of a water supply system'' is a concept expressed in the 
federal preamble, not in the federal regulations. Part (a) of the 
federal definition of ``replacement of water supply'' at 30 CFR 
701.5 requires that the time basis is ``a period agreed to by the 
permittee and the water supply owner.'' Kentucky provides a standard 
of 20 years that prevails unless a different time period is agreed 
to by the permittee and water supply owner. It is a reasonable 
standard that we believe will generally provide a fair outcome to 
the injured property owner and will provide certainty to the 
permittee. Because we allow a time period agreed to by the permittee 
and water supply owner to override the 20-year period, we are 
completely consistent with the federal regulation. To require that 
``remaining useful life'' of a water system be imposed as a rigid 
standard to be determined on a case by case basis would not only be 
inconsistent with the federal regulation itself, but also could bog 
down the enforcement process in wrangling over estimates of useful 
life that are necessarily subjective. Our 20-year provision is 
working well in practice.
    d. ``Underground or surface source'' is used in KRS 350.421(b) 
for both surface and underground mines, and is used in 30 U.S.C. 
717(b) for surface mines only. Presumably it has the same meaning in 
both federal and state law, and by including the universe of sources 
it plainly includes ``wells and springs.''
    e. Our identical counterpart to the 30 CFR 784.20(a)(3) 
requirement that the survey be provided to the property owner is at 
405 KAR 18:210 Section 1(4)(a), not Section 1(4)(b). Further, we 
have procedural protections for the property owner at Section 
1(4)(b) that the federal regulations do not have. Further still, the 
court struck down and OSM has suspended the 784.20(a)(3) requirement 
for presubsidence condition surveys of structures, so we are not now 
required to have any of these requirements in our program. Finally, 
we plan to delete the requirement for presubsidence surveys of 
structures. See issue 1(i) below.
    f. In the previous version of this regulation (before detailed 
presubsidence surveys were required), which was approved by OSM, 
undermining sooner than 90 days after the initial notice required a 
second notice, and in no case could undermining take place sooner 
than 30 days after the second notice. In this regulation, any 
undermining sooner than 90 days after the initial notice requires a 
second notice, must be requested and justified by the permittee, and 
may be approved by the cabinet, only if the presubsidence survey has 
been completed (or access denied) and any dispute about the survey 
has been resolved. With the addition of these safeguards it is 
possible to allow the minimum time after the second notice to be 
shorter (as short as 10 days in rare circumstances), and to allow 
for a possible waiver of the 10-day minimum in writing by the 
property owner. As presently structured the regulation provides 
ample notice and opportunity for the property owner to become 
involved in the decision making about the adequacy of the subsidence 
control plan and about the adequacy of the presubsidence survey and 
thereby protect his property.
    However, because we intend to delete the requirement for 
presubsidence surveys of structures, we also intend to amend 405 KAR 
18:210 Section 2(2) to return to the previously approved time 
periods for permittee notice to surface owners. See issue 1(i) 
below.
    g. Procedures for requesting confidentiality of submitted 
materials are set out in 405 KAR 8:010 Section 12. However, there 
are limits on what material may be kept confidential and we doubt 
that information critical to a subsidence control plan can 
reasonably be kept confidential under state law.
    h. Extraction ratios and other information required in 30 CFR 
817.121(g) are required in 405 KAR 18:210 Section 5(1), and Section 
5(2) expressly states that Mines and Minerals maps will fulfill the 
requirements of this section if they include all the information 
required under Section 5(1).
    i. In response to the suspension of the corresponding federal 
rules, we have filed with the Kentucky Legislative Research 
Commission a Notice of Intent to amend 405 KAR 18:210 to delete the 
requirement at Section 1(4) for presubsidence surveys of structures, 
and to delete the rebuttable

[[Page 38623]]

presumption of causation of subsidence damage at Section 3(4). We 
also intend to amend Section 2(2), regarding the required time 
periods for permittee notice to surface owners prior to undermining, 
returning to the previously approved time periods.
    j. The regulations at 405 KAR 16:060 Section 8(4)(c), 18:060 
Section 12(4)(c), and 18:210 Section 3(5)(c) are consistent with the 
purpose of the federal regulations because the bond cannot be not 
released or returned until after the permittee has completed the 
water supply replacement or repair or compensation for subsidence 
damage that the bond is intended to guarantee.
    The sole purpose of the additional bond is to insure that the 
cabinet will have the money to replace, repair or compensate if the 
permittee fails to do so. Under the federal regulations, if the 
permittee repairs or compensates for subsidence damage or replaces a 
water supply within 90 days (which can be extended up to one year 
under appropriate circumstances), the additional performance bond is 
not required. Thus the federal regulations implicitly recognize that 
there is no reason to require the additional bond unless there 
develops some reasonable likelihood that the regulatory authority 
will have to complete the replacement, repair or compensation. If a 
bond is posted and the permittee then satisfactorily completes the 
required replacement, repair or compensation there is no reasonable 
likelihood that the regulatory authority will have to do so, and 
thus there is no need for the regulatory authority to retain the 
additional bond amount. Since the cabinet's regulations require that 
the replacement, repair or compensation insured by the additional 
bond must have been completed before any release or return of bond, 
the cabinet believes its regulations are not inconsistent with the 
federal regulations.

2. Impoundment Issues

    k. The safety factors are provided in 405 KAR 16:100, Section 
1(3).
    l. 405 KAR 16:070 Section 1(2) requires other facilities, in 
addition to sedimentation ponds, to be installed, operated and 
maintained when necessary to insure that discharges meet effluent 
limitations. 405 KAR 16:070 Section 1(b) requires that the other 
treatment facilities be properly maintained and not be removed until 
no longer necessary to meet effluent limitations. 405 KAR 16:090 
Section 3(2)(b) requires that other treatment facilities be used in 
conjunction with runoff storage volume to meet effluent limits. 30 
CFR 816.46(d)(2) requires that other treatment facilities be 
designed in accordance with the applicable requirements of 
816.46(c), but this is essentially meaningless since the 
requirements in 816.46(c) are design requirements for sedimentation 
ponds (detention time, dewatering devices, compaction, spillways, 
etc.). The federal regulation does not achieve any result that our 
regulation does not achieve.
    m. The Kentucky regulations at 405 KAR 16:090/18:090 Section 4 
are as effective as the federal regulations. The requirement that 
ponds be designed, maintained and operated to provide adequate 
detention time to meet effluent limits is in 405 KAR 16/18:100 
Section 3(1). The requirement to use a nonclogging dewatering device 
is in Section 4. The purpose of the dewatering device is to remove 
inflow so that adequate detention time is maintained. To require 
that the nonclogging dewatering device must be adequate to maintain 
detention time to meet effluent limits would simply restate the 
purpose of the dewatering device. The language in 30 CFR 816/
817.46(c)(1)(iii)(D) regarding detention time is redundant to the 
detention time requirement in 30 CFR 816/817.46(c)(1)(iii)(B).
    n. The requirements at subsections (11), (12), and (13)(a) were 
deleted from 405 KAR 16/18:090 because they are provided in 405 KAR 
16/18:100.
    o. 405 KAR 8:030/8:040 Section 34(6) refers to Class B and C 
criteria under 405 KAR 7:040 Section 5 and 401 KAR 4:030 
(administrative regulation of the cabinet's Division of Water 
regarding criteria for dams), whereas the federal regulation refers 
to Class B and C criteria in the USDA-SCS Technical Release No. 60 
and incorporate TR-60 by reference.
    The Class B and C criteria of the cabinet and those of TR-60 are 
virtually identical criteria, since the Division of Water's criteria 
were originally developed based upon the SCS criteria. Thus there is 
no need for the cabinet's regulations to refer to, or to incorporate 
by reference, TR-60.
    p. Rainfall amounts for PMP events of duration longer than six 
hours are provided in the cabinet's Division of Water's (formerly 
Division of Water Resources) Engineering Memorandum No.2, ``Rainfall 
Frequency Values for Kentucky,'' April 30, 1971. The values are 
taken from the U.S. Weather Bureau's Technical Papers 40 and 49. 
Engineering Memorandum No. 2 is referenced in the Division of 
Water's Engineering Memorandum No. 5, ``Design Criteria for Dams & 
Associated Structures,'' February 1, 1975, which is referenced in 
401 KAR 4:030 Section 3, which in turn is referenced by 405 KAR 
16:100/18:100 and 405 KAR 16:160/18:160. Section C(V) (page C-3) of 
Engineering Memorandum No. 5 makes clear that the PMP to be used is 
the 6-hour PMP unless the drainage area in question has a time of 
concentration greater than six hours.
    q. The exemption from engineering inspections for certain 
impoundments without embankments at Section 1(9)(c) is extremely 
limited. The exemption is not available for impoundments that are 
sedimentation ponds, coal mine waste impoundments, or are otherwise 
intended to facilitate active mining. The engineering inspections 
required by Section 1(9) are intended for impoundments with 
embankment structures that could fail, and are intended to reveal 
any signs of instability, structural weakness or other hazardous 
conditions. The exempted impoundments are holes in the ground. They 
do not have embankment structures that could fail. They physically 
cannot present safety hazards or other environmental concerns that 
warrant the routine, detailed inspections by experienced registered 
professional engineers or other specialists. Even so, the exemption 
includes provisions that allow the cabinet to require the 
inspections on a case by case basis if needed. It would be useless 
to require the permittee to attempt some kind of demonstration of 
the obvious, beyond the information normally included in the permit 
application.
    The operator inspections required by Section 1(10) are intended 
for impoundments with embankment structures that could fail, but 
which are not Class B or C structures, and are not large enough to 
be subject to inspection under MSHA rules at 30 CFR 77.216. The 
required inspections are intended to reveal any signs of structural 
weakness or other hazardous conditions. The exemption at Section 
1(10)(b) from quarterly inspections is only for small nonhazardous 
impoundments without embankment structures. The exempted 
impoundments are holes in the ground, so they do not have embankment 
structures that could fail. They physically cannot develop the 
hazardous conditions the inspections are intended to protect 
against, so the inspections are unnecessary for this class of 
structures. Again, it would be useless to require the permittee to 
attempt some kind of demonstration of the obvious, beyond the 
information normally included in the permit application, in order to 
qualify for the exemption.
    r. 405 KAR 16:160/18:160 Section 3(1)(a) expressly mentions the 
6-hour PMP. The 90 percent design requirement is in 405 KAR 16:160/
18:160 Section 3(3). The 90 percent removal requirement is in 405 
KAR 16:160/18:160 Section 4.
    s. It is not necessary to reference the Minimum Emergency 
Spillway Hydrologic Criteria table in TR-60. The federal and 
Kentucky regulations achieve the same design precipitation values 
for the freeboard hydrograph criteria.
    3. Other Issues
    t. The definition of ``historically used for cropland'' cannot 
be read to decrease the acreage of prime farmland.
    OSM is concerned that paragraph (c) of our definition 
(pertaining to the consideration of additional years of cropland 
history for lands that have not been used as cropland for any five 
of the ten years immediately preceding acquisition or application) 
differs from the federal definition in that does not contain the 
phrase ``in which case the regulations for prime farmland may be 
applied to include more years of cropland history only to increase 
the prime farmland acreage to be preserved.'' The phrase in question 
is completely superfluous. The only possible use of paragraph (c) is 
to allow the cabinet to include additional lands as ``historically 
used for cropland.'' If lands meet the ``any five of ten years'' 
criteria of paragraphs (a) or (b) they are necessarily 
``historically used for cropland.'' Paragraph (c) allows the cabinet 
to look beyond the ten years to see if land should clearly be 
considered cropland even though it fails to meet the ``five of ten'' 
test in paragraphs (a) and (b). Paragraph (c) cannot by any stretch 
of the imagination be read to say that, because of non-crop use 
beyond the ten-year period, land should not be considered cropland 
even though it meets the ``any five of ten'' test under paragraphs 
(a) or (b).

[[Page 38624]]

    Paragraphs (a) and (b) of our definition include land as 
``historically used for cropland'' if it was, or likely would have 
been, used as cropland for any five of the ten years immediately 
preceding either the application or acquisition. Our definition on 
its face is at least as inclusive as the federal definition, which 
speaks only to acquisition.
    u. In all recent promulgations we have been deleting the phrase 
``but not limited to'' after the word ``including.'' Legal staff of 
the Kentucky Legislative Research Commission's Administrative 
Regulation Review Subcommittee have insisted that this vague and 
open-ended language is inconsistent with KRS 13A. We believe that 
deletion of the term ``but not limited to'' significantly restricts 
our discretion, but does not necessarily eliminate it.
    v. There is nothing in the statutes giving us the authority to 
adjudicate property title disputes in the first place. With or 
without the language in question, we cannot adjudicate property 
title disputes. The federal regulation says it does not intend to 
give the regulatory authority the authority to adjudicate property 
rights disputes.
    w. You point out that 405 KAR 8:030 Section 12 refers to the 
14th edition of Standard Methods for the Examination of Water and 
Wastewater, whereas 30 CFR 780.21(a) refers to the 15th edition. You 
do not state whether there are substantive differences between the 
two editions regarding the specific parameters for which sampling is 
required of coal mining applicants and permittees.
    Reference to an earlier edition is not in itself a deficiency. 
Further, we note that the 20th edition appeared in 1998.
    x. We could not find an official list of noxious plants for the 
state of Kentucky. In the absence of a list that we could place in 
the regulation or incorporate by reference, we deleted the 
definition. If there is no state list, there is no need for the 
definition. The federal regulation does not require that there be an 
official state list.
    y. 30 CFR 816.41(f) requires ``identifying and burying and/or 
treating, when necessary, materials which may . . .'' The use of 
``or'' and ``when necessary'' indicates that the federal regulation 
does not require ``all three actions in all cases.'' We removed the 
phrase ``and/or'' from 405 KAR 16:060 Section 4(1) because it is one 
of several phrases prohibited by KRS 13A.222(4)(k). Our regulation 
requires ``identifying, burying, and treating, in accordance with 
405 KAR 16:190, Section 3, materials which may . . .'' 405 KAR 
16:190 Section 3 prescribes the appropriate cover, and treatment as 
necessary.

    The impoundment issues at 405 KAR 16:090 and 18:090, and at other 
sections as appropriate, will be addressed in a separate Federal 
Register notice (KY-228-FOR). Likewise, the subsidence issues at 405 
KAR 18:210 will be addressed in a separate Federal Register notice (KY-
229-FOR).

B. March 16, 1998, Revisions

    Editorial and organizational changes are not included in this 
notice. Only those substantive changes not addressed in previous 
proposed rules relating to this amendment appear here.
    1. 405 KAR 8:001/16:001/18:001--revision of the definition of 
``Sedimentation Pond'' to mean ``a primary sediment control structure: 
(a) designed, constructed, or maintained pursuant to 405 KAR 16:090 or 
405 KAR 18:090; (b) that may include a barrier, dam, or excavated 
depression to: 1. slow water runoff; and 2. allow suspended solids to 
settle out; and (c) that shalt not include secondary sedimentation 
control structures, including a straw dike, riprap, check dam, mulch, 
dugout, or other measure that reduces overland flow velocity, reduces 
runoff volume, or trap sediment, to the extent that the secondary 
sedimentation structure drains into a sedimentation pond.
    2. 405 KAR 8:030--sections 34(3) and (5) require that ``the 
following be submitted to the cabinet after approval by the Mine Safety 
and Health Admininistration (MSHA): 1. a copy of the final approved 
design plans for impounding structures; 2. a copy of all correspondence 
with MSHA; 3. a copy of technical support documents requested by MSHA; 
4. a notarized statement by the applicant that the copy submitted to 
the cabinet is a complete and correct copy of the final plan approved 
by MSHA. These requirements are necessary to minimize duplication of 
technical review by MSHA and the cabinet, and to minimize conflicts 
that may arise from duplication of review.''
    3. 405 KAR 16:001/18:001--deletion of the definition of ``Noxious 
Plants'' at section 1(98).
    4. 405 KAR 16:001/18:001--revision of the definition of ``Surface 
Blasting Operation'' to mean ``(a) the on-site storage, transportation, 
and use of explosives in association with: 1. a coal exploration 
operation; 2. surface mining activities; or 3. a surface disturbance of 
underground mining activities; and (b) includes the following 
activities: 1. design of an individual blast; 2. implementation of a 
blast design; 3. initiation of a blast; 4. monitoring of an airblast 
and ground vibration; and 5. use of access control, warning, and all-
clear signals, and similar protective measures.
    5. 405 KAR 18:001--revision of the definition of ``Material 
Damage'' to delete reference to 405 KAR 8:040 Section 26.
    6. 405 KAR 16:160/18:160--revision of maximum water elevation 
determination at section 3(1)(c).

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. However, we are not requesting 
comments on Issues 1(e), (f), and (i). These issues pertain to 405 KAR 
18:210 Sections 1(4), 2(2), and 3(4). Subsequent to the submission of 
Kentucky's August 10, 2000, response (administrative record no. KY-
1489), Kentucky by letter dated January 25, 2001, submitted changes to 
405 KAR 18:210 Sections 1(4), 2(2), and 3(4) (administrative record no. 
KY-1502). Since the language of these three subsections changed, the 
2001 regulatory changes have superseded Kentucky's earlier response. We 
have sought public comments on these three amended sections on March 5, 
2001 (66 FR 13275) and August 15, 2001 (66 FR 42815). Accordingly, 405 
KAR 18:210 Sections 1(4), 2(2), and 3(4) will be addressed in a 
separate final Federal Register notice (KY-229-FOR).

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 the 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 file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SPATS No. [KY-216-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

[[Page 38625]]

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.

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 
regulations.

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 allowable 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 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 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, geographic regions, or Federal, State or local governmental 
agencies; 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 $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 11, 2002.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 02-14077 Filed 6-4-02; 8:45 am]
BILLING CODE 4310-05-P