[Federal Register Volume 68, Number 124 (Friday, June 27, 2003)]
[Proposed Rules]
[Pages 38255-38258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16354]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-243-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, OSM, are announcing the receipt of 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's proposed amendment consists of legislation passed by 
the Kentucky General Assembly in 2002 designating the ridge top of Pine 
Mountain as the Pine Mountain Trail State Park. Because the legislation 
designating the park expressly provides that it does not affect mining 
rights, it may raise issues concerning Federal unsuitability rules.
    We are seeking public comments on two issues. First, we are seeking 
comments on whether, based on the discussion found in Section II of 
this notice, the Kentucky legislation constitutes an amendment to the 
approved regulatory program. Second, should the legislation constitute 
an amendment to the approved program, we are seeking public comments on 
whether the State legislation is consistent with Federal unsuitability 
provisions.
    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. July 28, 2003. If requested, we will hold a public hearing on 
the amendment on July 22, 2003. We will accept requests to speak at a 
hearing until 4 p.m., e.s.t. on July 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

[[Page 38256]]

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
V. 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 Proposed Amendment

    On March 15, 2002, the Kentucky General Assembly enacted House Bill 
Number 556 (HB 556), which established the Pine Mountain Trail State 
Park in southeastern Kentucky. The bill provides that the Act and its 
implementing regulations are to be administered by the Kentucky 
Department of Parks. On March 27, 2003, Kentucky submitted HB 556 to us 
for processing as a State program amendment.
    Federal regulations at 30 CFR 732.17 establish guidelines for 
processing and requiring State program amendments. This section of the 
Federal regulations applies to any proposed changes which affect 
implementation of the approved regulatory program. The regulations 
state, in part:

* * * proposed changes which affect the implementation, administration 
or enforcement of the approved State program. At a minimum, 
notification shall be required for--
    (1) Changes in the provisions, scope or objectives of the State 
program;
    (2) Changes in the authority of the regulatory authority to 
implement, administer or enforce the approved program; * * *
    (3) Changes in the State law and regulations from those contained 
in the approved State program;
    Because HB 556 does not directly revise Kentucky's approved State 
program and because HB 556 is to be implemented by the Kentucky 
Department of Parks and not by the Kentucky Department of Surface 
Mining Reclamation and Enforcement, we are soliciting public comment on 
whether HB 556 amends the approved program and thus requires approval 
of OSM for implementation.
    Should we determine that it does amend the approved regulatory 
program, we are also seeking comments on the legislation as it relates 
to compatibility with the Federal unsuitability requirements. Both 
section 522(e)(5) of SMCRA and section 350.085(3) of the Kentucky 
Revised Statutes (KRS) preclude, subject to valid existing rights, 
mining operations within three hundred feet of any public park. Section 
4(2) of HB 556 states that ``notwithstanding the provisions in KRS 
350.085(3) * * * in acquiring any interests the Commonwealth [Kentucky] 
or its agencies shall waive the three hundred (300) foot restriction 
contained in KRS 350.085(3) * * *'' In HB 556 Section 11(1), the State 
legislature also recognized that ``* * * nothing in Sections 1 to 12 of 
this Act shall be construed or interpreted as affecting, in any way, 
the legitimate use of surface and subsurface property adjacent to or 
visible from the trail, whether such use was in effect upon the 
designation of the trail or not, including but not limited to ``mining, 
both by surface and underground mining means * * *''.

III. Public Comment Procedures

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-243-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 July 
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.

[[Page 38257]]

    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 as part of the administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

    If HB 556 is approved as a state program amendment, it would not 
have takings implications because ``* * * nothing in sections 1 to 12 
of this Act shall be construed or interpreted as affecting, in any way, 
the legitimate use of surface and subsurface property adjacent to or 
visible from the trail, whether such use was in effect upon the 
designation of the trail or not, including but not limited to mining * 
* * both by surface and underground mining means * * *''.

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.

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, shall not be 
construed or interpreted as ``affecting, in any way, the legitimate use 
of surface and subsurface property adjacent to or visible from the 
trail, whether such use was in effect upon the designation of the trail 
or not, including but not limited to * * * mining, both by surface and 
underground mining means * * *''. If it is approved as a state program 
amendment, it would not have a significant economic effect upon a 
substantial number of 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. 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

[[Page 38258]]

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: April 22, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-16354 Filed 6-26-03; 8:45 am]
BILLING CODE 4310-05-P