[Federal Register Volume 68, Number 136 (Wednesday, July 16, 2003)]
[Rules and Regulations]
[Pages 41911-41913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17966]


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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: Final rule; withdrawal of required amendment.

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SUMMARY: We are withdrawing 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 concerns the determination of the premining use of land that 
was not previously mined. In doing so, we find that the Kentucky 
program is no less effective than the corresponding Federal 
regulations.

EFFECTIVE DATE: July 16, 2003.

FOR FURTHER INFORMATION CONTACT: Kentucky Field Office Director William 
J. Kovacic. Telephone: (859) 260-8402; Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the Kentucky Program
II. Submission of the Required Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 
21426). You can also find later actions concerning Kentucky's program 
and program amendments at 30 CFR 917.12, 917.13, 917.15, 917.16 and 
917.17.

II. Submission of the Required Amendment

    On October 1, 1992, we published, in the Federal Register (57 FR 
45295), a requirement that Kentucky amend their program to provide that 
in determining premining uses of land not previously mined, the land 
must have been properly managed. We codified the required amendment in 
the Federal regulations at 30 CFR 917.16(g). Subsequent review of 
Kentucky's program led to our determination that this requirement may 
not be necessary to assure that Kentucky's program is as effective as 
the Federal regulations. We announced our intent to reconsider this 
required amendment in the April 29, 2003, Federal Register (68 FR 
22646). In the same document, we invited public comment on the proposed 
removal of the required amendment. The public comment period closed on 
May 29, 2003. We received comments from one Federal agency.

III. OSM's Findings

    Following are the findings we made concerning the proposed removal 
of the required amendment under SMCRA and the Federal regulations at 30 
CFR 732.15 and 732.17.
    The Kentucky regulations at 405 Kentucky Administrative Regulations 
(KAR) 16:210 and 405 KAR 18:220 Section 1 (1)(a) and (b) currently 
provide:

    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 under Section 4 of this 
administrative regulation.


[[Page 41912]]


    These provisions are no less effective than their Federal 
counterparts at 30 CFR 816.133(a) and 817.133(a). The State regulations 
at 405 KAR 16:210 Section 2(1) states in relevant part, ``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.'' When Kentucky submitted this change in 1992, OSM 
indicated that, ``[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''. [October 1, 1992, Federal Register (57 FR 
45295, 45300)]. When OSM determined that the Kentucky rule was less 
effective, to the extent Kentucky failed to require a comparison to a 
premining land use that was properly managed, OSM 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.
    We find, as discussed below, that the Kentucky program as it 
currently exists is no less effective than the Federal regulations and 
that the required amendment at 30 CFR 917.16(g) can be removed.
    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 uses that they were capable of supporting before 
any mining or 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: (1) Site 
configuration, which is addressed by the backfilling and grading 
regulations and is not dependent upon premining land use or management; 
and (2) revegetation success.
    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 find 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 removing the required amendment at 30 CFR 
917.16(g).

IV. Summary and Disposition of Comments

Public Comments

    No public comments were received on this proposed action.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on April 
29, 2003, we requested comments on the proposed removal of the required 
amendment at 30 CFR 917.16(g). We received one Federal Agency comment. 
On May 14, 2003, we received a comment from the U.S. Department of 
Labor's Mine Safety and Health Administration (MSHA) (Administrative 
Record No. KY-1579). The letter indicated that upon review of the 
proposed removal of the required amendment, MSHA has determined that 
there will be no impact of concern to their office.
    On June 16, 2003, the USFWS contacted the Lexington Field Office 
and informed them that they would have no comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (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.). This amendment does not pertain 
to air or water quality standards. Therefore, we did not ask the EPA 
for their concurrence or comment.

V. OSM's Decision

    Based on the above finding, we are removing the required amendment 
to Kentucky's program relating to the determination of premining uses 
of land not previously mined having to be properly managed.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 917, which codify decisions concerning the Kentucky 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. 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

[[Page 41913]]

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, and 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 Federal Government and Indian tribes. The 
basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal program involving 
Indian tribes.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 that 
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. For the reasons 
previously stated, 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 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. 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 27, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

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For the reasons set out in the preamble, 30 CFR Part 917 is amended as 
set forth below:

PART 917--KENTUCKY

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1. The authority citation for Part 917 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


Sec.  917.16  [Amended]

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2. Section 917.16 is amended by removing and reserving paragraph (g).

[FR Doc. 03-17966 Filed 7-15-03; 8:45 am]
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