[Federal Register Volume 68, Number 82 (Tuesday, April 29, 2003)]
[Proposed Rules]
[Pages 22646-22648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10533]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-242-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.

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SUMMARY: We are announcing the proposed removal of a required amendment 
to the Kentucky regulatory program (the ``Kentucky program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
The required amendment is found at 30 CFR 917.16(g). 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 p.m., 
e.s.t. May 29, 2003. If requested, we will hold a public hearing on the 
amendment on May 27, 2003. We will accept requests to speak at a 
hearing until 4 p.m., e.s.t. on May 14, 2003.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Mr. 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 for 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 
21434). 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 Required Amendment

    Kentucky Administrative Regulations (KAR) currently provide at 405 
KAR 16:210 and 18:220 Section 1(1)(a) and (b) the following:

    Prior to the final release of performance bond, affected areas 
shall be restored in a timely manner:
    (a) To conditions capable of supporting the uses which the areas 
were capable of supporting before any mining; or
    (b) To conditions capable of supporting higher or better 
alternative uses as approved by the cabinet [Natural Resources and 
Environmental Protection Cabinet] under Section 4 of this 
administrative regulation.

    These provisions are substantively identical to their Federal 
counterparts at 30 CFR 816.133(a) and 817.133(a). The State regulations 
at Section 2 state, ``the premining use of land to which the postmining 
land use is compared shall be those uses which the land previously 
supported if the land has not been previously mined.'' In 1992, when 
Kentucky submitted Section 2 as a program amendment, OSM stated, 
``[t]his rule, while similar to the Federal rule at 30 CFR 816.133(b), 
fails to provide that a postmining land use must be compared to 
premined land which was properly managed, as set forth in the cited 
Federal rule.'' 57 FR 45295, 45306 (October 1, 1992). Thus, in 1992, 
OSM found the Kentucky rules less effective to the extent Kentucky 
failed to require a comparison to a premining land use that was 
properly managed and required an amendment. The required amendment at 
30 CFR 917.16(g) requires Kentucky to submit proposed revisions to its 
regulations to provide that ``in determining premining uses of land not 
previously mined, the land must have been properly managed.''
    OSM is proposing to remove the required amendment because we 
believe that, with respect to this issue, the Kentucky program as it 
currently exists is no less effective than the Federal regulations.
    The Kentucky program, like the Federal regulations at 30 CFR 
816.133(a) and 817.133(a), requires that all disturbed areas be 
restored in a timely manner to conditions that are capable of 
supporting either the (1) uses that they were capable of supporting 
before any mining or (2) any approved higher or better uses. (The 
Kentucky program also extends this requirement to all affected areas 
and does not limit it to disturbed areas.) In general, compliance with 
this requirement rests on a determination that the site has been 
restored to a condition capable of supporting the approved postmining 
land use. This determination consists primarily of two components: Site 
configuration, which is addressed by the backfilling and grading 
regulations and is not dependent upon premining land use or management, 
and revegetation success.

[[Page 22647]]

    As authorized by 30 CFR 816.116 and 816.117, the Kentucky program 
(see 405 KAR 16:200/18:200 Section 5) relies primarily upon technical 
standards (ground cover; productivity standards; and tree and shrub 
stocking standards) to evaluate revegetation success for the various 
postmining land use categories. These technical standards for ground 
cover, stocking, and production are not site specific and apply 
regardless of how the land was used or managed before mining. The 
technical standards are based on accepted management practices for the 
land use in question.
    Further, Kentucky's rules allow the use of reference areas to 
evaluate revegetation success. These references must be on unmined 
areas and as close to the permit area as possible. Under 405 KAR 
16:200/18:200 Section 7, reference areas must be managed in accordance 
with the regional norm for the approved postmining land use. Regional 
norms would not be considered improper management practices for 
purposes of determining whether the land has been restored to its 
premining capability.
    For these reasons, we believe that, with respect to the provision 
at issue in 30 CFR 917.16(g), Kentucky's program is no less stringent 
than SMCRA and no less effective than the Federal regulations 
implementing SMCRA. Therefore, we are proposing to remove the required 
amendment at 30 CFR 917.16(g).

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the removal of the required amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15.

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: SATS No. KY-242-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. on May 
14, 2003. 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 (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 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.

[[Page 22648]]

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes. 
This proposed rule applies only to the Kentucky program and therefore 
does not affect tribal programs.

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: March 20, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-10533 Filed 4-28-03; 8:45 am]
BILLING CODE 4310-05-P