[Federal Register Volume 68, Number 137 (Thursday, July 17, 2003)]
[Rules and Regulations]
[Pages 42274-42277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18100]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-236-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 pertains to public notification of permit applications. In 
doing so, we find that the Kentucky

[[Page 42275]]

program is consistent with the corresponding Federal regulations.

EFFECTIVE DATE: July 17, 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 December 31, 1990, we published in the Federal Register (55 FR 
53490) a requirement that Kentucky amend its program to require that 
public notice shall not be initiated until the Kentucky Natural 
Resources and Environmental Protection Cabinet (Cabinet) has determined 
that a permit application is administratively complete. Kentucky was 
required to respond by January 30, 1991, but by letter of February 1, 
1991, requested an extension to February 28, 1991. We granted that 
extension by letter of February 22, 1991. On March 4, 1991, Kentucky 
responded by letter indicating that the existing regulation at 405 
Kentucky Administrative Regulations (KAR) 8:010 is as effective as the 
Federal regulations. Kentucky's response reminded OSM that the initial 
program approval of May 18, 1982, considered these public notice 
differences and deemed them to be no less effective than the Federal 
regulations. No action was taken on the letter. We announced our intent 
to reconsider this required amendment when we published a proposed rule 
notice in the June 6, 2002, Federal Register (67 FR 38917), and in the 
same document we invited public comment on the proposed action during a 
public comment period that closed on July 5, 2002.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17.
    Our order that Kentucky amend its program was based on a regulation 
change made by us in 1983 that added the concept of an 
``administratively complete application'' that starts the public 
notification process at 30 CFR 773.13(a)(1), later renumbered 30 CFR 
773.6(a). As discussed below, the applicant could not begin the public 
notification process until the regulatory authority notified the 
applicant that the permit application was administratively complete. 
Our concern with the Kentucky program at the time, was that it appeared 
that if the permit application was determined not to be 
administratively complete after the notification process began, 
Kentucky did not have a provision that restarted the notification 
process once the permit application was determined to be 
administratively complete by Kentucky.
    Kentucky's initial response to our order to amend its program 
stated that we had approved the provision, later found to be deficient 
in 1990, in 1982. However, the issue considered in the initial program 
approval in 1982 was different than the issue addressed in the required 
amendment since the required amendment was the result of a change in 
the Federal regulations in 1983.
    The issue considered in the May 18, 1982, conditional approval is 
discussed in Finding 14.15 (47 FR 21415). That finding relates directly 
to an earlier finding, 14.27, regarding the review of Kentucky's 
initial program submittal published on October 22, 1980 (45 FR 69956). 
Finding 14.27 reads as follows: 405 KAR 8:010E Section 8(8) is less 
stringent than 30 CFR 786.11(d) concerning public notice of filing 
permit applications. The State regulation does not specify when the 
applicant must file a copy of the application in a local public office 
for public inspection; while the Federal regulation requires the filing 
by the first newspaper publication date. The newspaper publication 
would be meaningless if the application were not on file and available 
for public review at the same time.
    As this finding indicates, the primary issue was when a copy of the 
submitted permit application would be made available for public review. 
When we conditionally approved the Kentucky program on May 18, 1982, we 
stated in finding 14.15 that Kentucky's explanation of its process 
persuaded us that Kentucky's program was no less effective than the 
Federal regulations.
    The 1990 required amendment, on the other hand, resulted from a 
change in the Federal regulations that was made on September 28, 1983, 
when the concept of ``administratively complete application'' was added 
to the Federal definitions at 30 CFR 701.5 and applied at 30 CFR 
773.13(a)(1) and later renumbered to the current 30 CFR 773.6(a), which 
provides for public notification of an administratively complete permit 
application.
    Although Section 513(a) of SMCRA requires ``At the time of 
submission such advertisement shall be placed by the applicant in a 
local newspaper of general circulation in the locality of the proposed 
surface mine at least once a week for four consecutive weeks'', we 
believed that to achieve consistency among the various State and 
Federal regulatory programs the initial regulations adopted to 
implement this provision needed to be revised. The revision of the 
definition of a ``complete permit application'' to an 
``administratively complete application'' was discussed in the 1983 
preamble. There, we stated that:

    Under previous 30 CFR 786.11(a), applicants were required to 
place newspaper advertisements upon the filing of complete permit 
applications. In practice, however, the previous rule was not 
strictly applied and the comment period was not started anew each 
time additional information was submitted to the regulatory 
authority following the filing of an application. The final 
definition of an ``administratively complete application'' 
recognizes these practical realities, while ensuring that each 
regulatory requirement is addressed in sufficient detail initially 
to provide meaningful regulatory authority and public review of the 
applications.''

[48 FR 44349, September 28, 1983]. Thus, the 1983 regulatory changes 
recognize that the public notification process does not restart every 
time a change is made to a permit application.
    We believe the intent of notifying the public that a permit 
application has been submitted is to alert it to the right to comment 
on the application. The deadline for submitting those comments

[[Page 42276]]

is thirty days after publication of the fourth consecutive and final 
newspaper advertisement, as set forth at 30 CFR 773.6(b)(2).
    Kentucky's law, at KRS Section 350.055(2) requires the applicant to 
publish a notice of intention to mine * * * at least once a week for 
four consecutive weeks beginning at the time of submission. This is 
consistent with SMCRA. The Kentucky regulations at 405 KAR 8:010 
Section 8 (2)(a) state that ``* * * [t]he first advertisement shall be 
published on or after the date the application is submitted to the 
Cabinet. The applicant may elect to begin notification on or after the 
date the applicant receives the notification from the Cabinet under 
Section 13(2) of this regulation that the application has been deemed 
administratively complete and ready for technical review * * * the 
final consecutive weekly advertisement being published after the 
applicant's receipt of written notice from the Cabinet that the 
application has been deemed administratively complete and ready for 
technical review * * *''
    These Kentucky requirements were approved by us prior to our 
revisions promulgated in 1983 to require an ``administratively complete 
application'' determination before beginning public notification. 
Although Kentucky's program does not require the applicant to begin 
public notification until after the determination of administrative 
completeness, it does require the last notice to be after the 
determination of administrative completeness. Moreover, the Kentucky 
program does not explicitly address the question of whether the four 
consecutive weekly advertisements must be repeated if the application 
is determined to be administratively incomplete.
    As noted above, Kentucky's regulations at 405 KAR Section 8(2)(a) 
state in part that ``* * * the advertisement shall be published at 
least once each week for four (4) consecutive weeks, with the final 
consecutive weekly advertisement being published after the applicant's 
receipt of written notice from the Cabinet that the application is 
deemed complete.'' This requires public advertisements to be published 
on ``consecutive'' weeks and that the final advertisement may only 
appear ``after'' the notification that the application is 
administratively complete. If an applicant chooses to begin publication 
before the administrative completeness determination, and Kentucky 
notifies the applicant that additional information is required before 
administrative completeness can be determined and the applicant stops 
advertising, it is quite likely that a ``break'' in the newspaper 
notices would occur and the ``consecutive'' advertisement requirement 
would not be complied with by the applicant. When this occurs, the 
applicant must restart the newspaper advertisements to comply with the 
``consecutive'' requirement of the Kentucky program. In such instances, 
the current program, without modification, compels the applicant to 
begin the advertisement process anew. While there may be instances when 
no ``break'' in the advertisement sequence would occur, the Kentucky 
program does not prohibit the Cabinet from requiring the applicant to 
begin the advertisement sequence again after the administrative 
completeness determination is made. For this reason, and as discussed 
below, we believe the current program can be implemented in a manner 
that renders it no less effective than the Federal regulations.
    After reviewing the Federal requirements and Kentucky's 
requirements we have decided to withdraw the required amendment as set 
forth at 30 CFR 917.16 (d)(2). This action is based on the 
understanding that Kentucky's implementation of the public 
participation requirements for permit application processing will 
require that, if a permit application is found not to be 
administratively complete, the four consecutive weeks advertisement 
sequence must start anew after the application is determined to be 
administratively complete. If in the future, we determine that the 
Kentucky program is not being implemented according to this decision, 
we may require Kentucky to amend its program.

IV. Summary and Disposition of Comments

    No public or Federal agency comments were received on this proposed 
action during the public comment period.

V. OSM's Decision

    Based on the above findings, we are removing the required amendment 
to Kentucky's program at 30 CFR 917.16(d)(2).
    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 Kentucky program demonstrate that Kentucky 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 Kentucky 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 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, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

[[Page 42277]]

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. 
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

    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 917 is amended as set 
forth below:

PART 917--Kentucky

0
1. The authority citation for part 917 continues to read as follows:

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


Sec.  917.16  [AMENDED]

0
2. Section 917.16 is amended by removing and reserving paragraph 
(d)(2).
[FR Doc. 03-18100 Filed 7-16-03; 8:45 am]
BILLING CODE 4310-05-P