[Federal Register Volume 68, Number 11 (Thursday, January 16, 2003)]
[Rules and Regulations]
[Pages 2199-2201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-978]


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

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: Final rule; technical amendment.

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

SUMMARY: We are announcing the removal of two instructions to 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 of 1977 (SMCRA or the Act) 
and authorizes Kentucky to regulate surface coal mining and reclamation 
operations in Kentucky. We are removing the instructions because the 
actions we required are no longer applicable and nothing further is 
required from the State.

EFFECTIVE DATE: January 16, 2003.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Field Office 
Director, Telephone: (859) 260-8400, Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION: 
I. Background on the Kentucky Program
II. OSM's Findings
III. Summary and Disposition of Comments
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 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 2200]]

II. OSM's Findings

    During the course of implementing SMCRA, we occasionally issue new 
regulations. As a result, States may have to amend their approved 
programs in order to be consistent with the new Federal regulations. In 
addition, States may submit proposed amendments to their approved 
programs on their own initiative. In either event, we must determine 
whether the amendment submitted by the State meets the requirements of 
SMCRA. When it does, the amendment is approved and when it does not, it 
is not approved and the State may be instructed to further amend its 
program. These instructions are codified in our regulations at 30 CFR 
917.16 for the Kentucky program. For the reasons that follow, we are 
removing two such instructions to the State of Kentucky.
    At 30 CFR 917.16 (c)(2), Kentucky was required 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 Kentucky has never submitted these 
implementing regulations, and 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. See 51 FR 26002, 26005 
(July 18, 1986). For these reasons, the requirement codified at 30 CFR 
917.16(c)(2) is unnecessary and the instruction should be removed. 
Senate Bill 374 cannot take effect, of course, until Kentucky submits 
implementing regulations and we approve them.
    At 30 CFR 917.16(o), Kentucky was required to submit a program 
change to the Kentucky Revised Statutes (KRS) 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 
(30 CFR 917.13(c); 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 the instruction should be removed.

III. Summary and Disposition of Comments

Public Comments

    In the July 15, 2002, Federal Register (67 FR 46432), we asked for 
public comments on our proposal to remove the two instructions 
(administrative record no. KY 1562), but did not receive any.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(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.). Because the instructions proposed for removal did 
not pertain to these subjects, we did not request EPA concurrence.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
proposal from EPA (administrative record No. KY 1562). EPA did not 
respond to our request.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule is a technical amendment and does not have takings 
implications.

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.

Executive Order 13132--Federalism

    This rule is a technical amendment and does not have Federalism 
implications.

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.). 
This rule is a technical amendment that does not impose any additional 
requirements on small entities.

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. For the reasons 
previously stated, this rule: (a) Does not have an annual effect

[[Page 2201]]

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.

Unfunded Mandates

    This rule is a technical amendment and 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.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 8, 2002.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR part 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.


Sec.  917.16  [Amended]

    2. Sec.  917.16 is amended by removing and reserving paragraphs 
(c)(2) and (o).

[FR Doc. 03-978 Filed 1-15-03; 8:45 am]
BILLING CODE 4310-05-P