[Federal Register Volume 68, Number 11 (Thursday, January 16, 2003)]
[Proposed Rules]
[Pages 2265-2268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-974]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 916

[KS-023-FOR]


Kansas Regulatory Program and Abandoned Mine Land Reclamation 
Plan

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

ACTION: Proposed rule; reopening and extension of public comment period 
on proposed amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing receipt of an addition to a previously proposed 
amendment to the Kansas regulatory program and abandoned mine land 
reclamation (AMLR) plan (Kansas program) under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA). The addition concerns

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abandoned mine land (AML) agency procedures for reclamation projects 
receiving less than 50 percent government funding. Kansas intends to 
revise its program to be consistent with the corresponding Federal 
regulations.

DATES: We will accept written comments on this amendment until 4 p.m., 
c.s.t., January 31, 2003.

ADDRESSES: You should mail or hand deliver written comments to John W. 
Coleman, Mid-Continent Regional Coordinating Center, at the address 
listed below.
    You may review copies of the Kansas program, the 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 Mid-Continent Regional Coordinating Center.
    John W. Coleman, Mid-Continent Regional Coordinating Center, Office 
of Surface Mining, 501 Belle Street, Alton, Illinois 62002. Telephone: 
(618) 463-6460. Internet: [email protected].
    Kansas Department of Health and Environment, Surface Mining 
Section, 4033 Parkview Drive, Frontenac, Kansas 66763. Telephone: (316) 
231-8540.

FOR FURTHER INFORMATION CONTACT: John W. Coleman, Mid-Continent 
Regional Coordinating Center. Telephone: (618) 463-6460. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Kansas Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Kansas 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 this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this 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 Kansas regulatory program on January 21, 
1981. You can find background information on the Kansas regulatory 
program and program amendments, including the Secretary's findings, the 
disposition of comments, and conditions of approval, in the January 21, 
1981, Federal Register (46 FR 5892). You can also find later actions 
concerning the Kansas regulatory program and program amendments at 30 
CFR 916.10, 916.12, 916.15, and 916.16.
    The AMLR Program was established by title IV of the Act (30 U.S.C. 
1201 et seq.) in response to concerns over extensive environmental 
damage caused by past coal mining activities. The program is funded by 
a reclamation fee collected on each ton of coal that is produced. The 
money collected is used to finance the reclamation of abandoned coal 
mines and for other authorized activities. Section 405 of the Act 
allows States and Indian tribes to assume exclusive responsibility for 
reclamation activity within the State or on Indian lands if they 
develop and submit to the Secretary of the Interior for approval a 
program (often referred to as a plan) for the reclamation of abandoned 
coal mines. On the basis of these criteria, the Secretary of the 
Interior approved the Kansas abandoned mine land reclamation plan 
(Kansas plan) on February 1, 1982. You can find background information 
on the Kansas plan, including the Secretary's findings, the disposition 
of comments, and the approval of the Kansas plan in the February 1, 
1982, Federal Register (47 FR 4513). You can find later actions 
concerning the Kansas plan and amendments to the plan at 30 CFR 916.20 
and 916.25.

II. Description of the Proposed Amendment

    By e-mail dated July 24, 2002 (Administrative Record No. KS-623), 
Kansas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 
et seq.). Kansas sent the amendment in response to a letter dated 
August 23, 2000 (Administrative Record No. KS-618), that we sent to 
Kansas, in accordance with 30 CFR 732.17(c), concerning valid existing 
rights. At its own initiative, Kansas also proposed to revise other 
provisions in its regulations by adopting by reference portions of the 
Federal regulations at 30 CFR Part 700 to End that were revised as of 
July 1, 2001.
    We announced receipt of the amendment in the September 23, 2002, 
Federal Register (67 FR 59484) and invited public comment on its 
adequacy. The public comment period closed October 23, 2002.
    During our review of the amendment, we realized that we did not 
announce receipt of Kansas' proposed regulation at Kansas 
Administrative Regulations (K.A.R.) 47-16-12 in the proposed rule 
published on September 23, 2002. Therefore, we are reopening the 
comment period in this proposed rule. Kansas proposed to add the 
following new regulation concerning AML agency procedures for 
reclamation projects receiving less than 50 percent government funding.

    K.A.R. 47-16-12. AML agency procedures for reclamation projects 
receiving less than 50 percent government funding. This section only 
applies if the level of funding for the construction will be less 
than 50 percent of the total cost because of planned coal 
extraction.
    (a) Consultation with the active coal mining portion of the 
regulatory authority. In consultation with the active mining portion 
of the regulatory authority, the surface mining section must make 
the following determinations:
    (1) They must determine the likelihood of the coal being mined 
under an active coal mining permit. This determination must take 
into account available information such as:
    (i) Coal reserves from existing mine maps or other sources;
    (ii) Existing environmental conditions;
    (iii) All prior mining activity on or adjacent to the site;
    (iv) Current and historic coal production in the area; and
    (v) Any known or anticipated interest in mining the site.
    (2) They must determine the likelihood that nearby or adjacent 
mining activities might create new environmental problems or 
adversely affect existing environmental problems at the site.
    (3) They must determine the likelihood that reclamation 
activities at the site might adversely affect nearby or adjacent 
mining activities.
    (b) Concurrence with the active mining portion of the regulatory 
authority. If, after consulting with the active mining portion of 
the regulatory authority, it has been decided to proceed with the 
reclamation project, then the abandoned mine land and active mining 
portions of the regulatory authority must concur in the following 
determinations:
    (1) They must concur in a determination of the limits on any 
coal refuse, coal waste, or other coal deposits which can be 
extracted under K.A.R. 47-6-9.
    (2) They must concur in the delineation of the boundaries of the 
AML project.
    (c) Documentation. You must include in the AML case file:
    (1) The determinations made under paragraphs (a) and (b) of this 
section;
    (2) The information taken into account in making the 
determinations; and
    (3) The names of the parties making the determinations.
    (d) Special requirements. For each project, the surface mining 
section must:
    (1) Characterize the site in terms of mine drainage, active 
slides and slide-prone areas, erosion and sedimentation, vegetation, 
toxic materials, hydrologic balance, and other aml hazards 
associated with the project;

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    (2) Ensure that the reclamation project is conducted in 
accordance with the provisions of K.A.R 47-16-1 et. seq.;
    (3) Develop specific-site reclamation requirements, including 
performance bonds when appropriate in accordance with state 
procedures; and
    (4) Require the contractor conducting the reclamation to 
provide, prior to the time reclamation begins, applicable documents 
that clearly authorize the extraction of coal and payment of 
royalties.
    (e) Limitation. If the reclamation contractor extracts coal 
beyond the limits of the incidental coal specified in paragraph 
(b)(1) of this section, the contractor must obtain a permit under 
47-401 et. seq. and K.A.R. 47-1-1 et. seq. for such coal.

III. Public Comment Procedures

    We are reopening the comment period on the Kansas program amendment 
to provide you an opportunity to reconsider the adequacy of the 
amendment. Under the provisions of 30 CFR 732.17(h) and 884.15(a), we 
are requesting comments on whether the amendment satisfies the program 
approval criteria of 30 CFR 732.15 and 884.14. If we approve the 
amendment, it will become part of the Kansas program.

Written Comments

    If you submit written or electronic comments on the proposed rule 
during the 15-day comment period, they should be specific, should be 
confined to issues pertinent to the notice, and should explain the 
reason for your recommendation(s). We may not be able to consider or 
include in the Administrative Record comments delivered to an address 
other than the one listed above (see ADDRESSES).

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: KS-023-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 Mid-Continent Regional 
Coordinating Center at (618) 463-6460.

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.

IV. Procedural Determinations

Executive Order 12630--Takings

    In this rule, the State is proposing valid existing rights 
standards that are similar to the standards in the Federal definition 
at 30 CFR 761.5. Therefore, this rule has the same takings implications 
as the Federal valid existing rights rule. The takings implications 
assessment for the Federal valid existing rights rule appears in part 
XXIX.E of the preamble to that rule. See 64 FR 70766, 70822-27, 
December 17, 1999. The provisions in the rule based on other 
counterpart Federal regulations do 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 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. These standards are also not 
applicable to the actual language of State and tribal abandoned mine 
land reclamation plans and plan amendments because each plan is drafted 
and promulgated by a specific State or tribe, not by OSM. Decisions on 
proposed abandoned mine land reclamation plans and plan amendments 
submitted by a State or tribe are based solely on a determination of 
whether the submittal meets the requirements of title IV of SMCRA (30 
U.S.C. 1231-1243) and 30 CFR part 884 of the Federal regulations.

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. Section 405(d) 
of SMCRA requires State abandoned mine reclamation programs to be in 
compliance with the procedures, guidelines, and requirements 
established under 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). Also agency decisions on proposed State and tribal 
abandoned mine land reclamation plans and plan amendments are 
categorically excluded from compliance with the National Environmental 
Policy Act (42 U.S.C. 4332) by the Manual of the Department

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of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

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 916

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 15, 2002.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 03-974 Filed 1-15-03; 8:45 am]
BILLING CODE 4310-05-P