[Federal Register Volume 67, Number 135 (Monday, July 15, 2002)]
[Proposed Rules]
[Pages 46432-46434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17654]


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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-240-FOR]


Kentucky Regulatory Program

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

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

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

SUMMARY: We are proposing the removal of two instructions to the State 
of Kentucky pertaining to required amendments to the Kentucky 
regulatory program (the ``Kentucky program''). The Kentucky program was 
established under the Surface Mining Control and Reclamation Act of 
1977 (SMCRA or the Act) and authorizes Kentucky to regulate surface 
coal mining and reclamation operations in Kentucky. We are proposing to 
remove the instructions because the actions we required have either 
been satisfied or are no longer applicable and nothing further is 
required by the state. This document gives the times and locations that 
the Kentucky program is available for your inspection, the comment 
period during which you may submit written comments on the proposed 
actions, and the procedures that we will follow for the public hearing, 
if one is requested.

DATES: We will accept written comments on these proposed actions until 
4 p.m., e.s.t. August 14, 2002. If requested, we will hold a public 
hearing on the proposed actions on August 9, 2002. We will accept 
requests to speak at a hearing until 4:00 p.m., e.s.t. on July 30, 
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, 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.

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 Actions
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.

II. Description of the Proposed Actions

    At 30 CFR 917.16(c)(2), we required Kentucky to submit proposed 
regulations to implement the program changes contained in Senate Bill 
(SB) 374. SB 374 added a new section to Kentucky's statutes pertaining 
to the issuance of special permits for the remining of previously 
affected mined areas. However, SB 374 specifically prohibits its own 
implementation until implementing regulations are promulgated by 
Kentucky and approved by OSM. In addition, 30 CFR 732.17(g) prohibits 
States from implementing proposed amendments to their programs until 
OSM approves the amendments. Because OSM determined that SB 374 could 
not be implemented without accompanying regulations, SB 374 is not a 
functioning part of the approved State program until promulgation of 
such regulations. See 51 FR 26002, 26005 (July 18, 1986). For these 
reasons, the requirement codified at 30 CFR 917.16(c)(2) is unnecessary 
and should be removed.
    At 30 CFR 917.16(o), we required Kentucky to submit a program 
change to the Kentucky Revised Statutes at 350.060 to: (1) clarify that 
a person may not continue to conduct surface coal mining operations 
under an expired permit unless the permittee filed a complete 
application for renewal at least 120 days before the permit expired and 
the regulatory authority had not yet approved or disapproved the 
application when the permit expired, and (2) require the issuance of an 
imminent harm cessation order to any person conducting surface coal 
mining operations under an expired permit unless the permittee filed a 
complete application for renewal at least 120 days before the permit 
expired and the regulatory authority had not yet approved or 
disapproved the application when the permit expired. On September 6, 
2000, we announced the preemption and supersession of KRS 350.060(16) 
because it was inconsistent with the requirements of SMCRA (65 FR 
53909). Because both our disapproval and subsequent supersession of the 
quoted provisions of the statute prevent Kentucky from implementing 
those provisions, and because the Kentucky program otherwise requires 
issuance of imminent harm cessation orders to persons conducting 
surface coal mining operations under expired permits, we believe that 
the requirements codified at 30 CFR 917.16(o) are no longer necessary 
and should therefore be removed.

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

[[Page 46433]]

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., July 
30, 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) 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

[[Page 46434]]

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: June 10, 2002.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 02-17654 Filed 7-12-02; 8:45 am]
BILLING CODE 4310-05-P