[Federal Register Volume 68, Number 192 (Friday, October 3, 2003)]
[Proposed Rules]
[Pages 57398-57400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25055]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-245-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''). We are seeking comments on whether a policy letter received 
from the State meets the requirements of the required amendment, 
thereby eliminating the need for a change in the Kentucky program.
    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. November 3, 2003. If requested, we will hold a public hearing on 
the amendment on October 28, 2003. We will accept requests to speak at 
a hearing until 4 p.m., e.s.t. on October 20, 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, Director, Lexington Field Office, Office of Surface 
Mining Reclamation and Enforcement, 2675 Regency Road, Lexington, 
Kentucky 40503, Telephone: (859) 260-8400. E-mail: [email protected].
Carl E. Campbell, Commissioner, Natural Resources and Environmental 
Protection Cabinet, 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 Proposed Amendment

    The required amendment at 30 CFR 917.16(k) reads as follows:

    By October 1, 1993, Kentucky shall submit to OSM either proposed 
amendments or a schedule for the submission of proposed amendments 
to Kentucky Administrative Regulations to require that the 
assessment conference officer's report mentioned in 405 KAR 7:092 
section 4(5) be served in a manner consistent with 405 KAR 7.091 
section 5, and to specify that the time allowed under 405 KAR 7:092 
section 6(1)(b) to file a petition for administrative review of the 
proposed penalty set forth in the conference officer's report does 
not begin to run until service is obtained in this manner.

    On April 3, 2003 (Administrative Record No. KY 1576), we received a 
letter from the Office of Administrative Hearings, Kentucky Natural 
Resources and Environmental Protection Cabinet, requesting that its 
policy of requiring all conference officers' reports be sent by 
certified mail be considered by us as fulfilling the requirements of 
the above-mentioned amendment. Included in its letter was a copy of a 
memorandum, dated April 2, 2002 (Administrative Record No. KY-1576), 
sent to the Hearing Officer and Assessment Conference Officer which 
reminded it of this requirement and its relationship to the Federal 
provisions for service of penalty assessment reports (Administrative 
Record No. KY-1576).
    We are thus seeking public comment on whether Kentucky's policy as 
described meets the terms of the required amendment.

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-245-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

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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 
October 20, 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.

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

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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: September 18, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-25055 Filed 10-2-03; 8:45 am]
BILLING CODE 4310-05-P