[Federal Register Volume 68, Number 226 (Monday, November 24, 2003)]
[Rules and Regulations]
[Pages 65835-65843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28995]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-239-FOR]


Kentucky Abandoned Mine Land (AML) Plan

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving a proposed amendment to the Kentucky 
abandoned mine land reclamation plan (the ``Kentucky plan'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act).

EFFECTIVE DATE: November 24, 2003.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone: (859) 
260-8400, Internet address: bkovacic @ osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Kentucky Program

    The Abandoned Mine Land (AML) Reclamation Program was established 
by Title IV of SMCRA (30 U.S.C. 1201 et seq.) in response to concerns 
over extensive environmental damage caused by past coal mining 
activities. The program is funded by a reclamation fee collected on 
each ton of coal that is produced. The money collected is used to 
finance the reclamation of abandoned coal mines and for other 
authorized activities. Section 405 of the Act allows States and Indian 
Tribes to assume exclusive responsibility for reclamation activity 
within the State or on Indian lands if they develop and submit to the 
Secretary of the Interior (Secretary) for approval, a program (often 
referred to as a plan) for the reclamation of abandoned coal mines. On 
the basis of these criteria, the Secretary approved the Kentucky plan 
on May 18, 1982. You can find background information on the Kentucky 
plan, including the Secretary's findings, the disposition of comments, 
and the approval of the plan in the May 18, 1982, Federal Register (47 
FR 21435). You can find later actions concerning the Kentucky plan and 
amendments to the plan at 30 CFR 917.20 and 917.21.

II. Submission of the Proposed Amendment

    By letter dated April 29, 2002 (Administrative Record No. KY-70), 
Kentucky sent us a proposed amendment to its plan under SMCRA (30 
U.S.C. 1201 et seq.). Kentucky submitted the amendment to propose 
comprehensive changes to the plan. The formal amendment was preceded by 
two informal submissions in September 1997, and March 16, 2000 
(Administrative Record No. KY-67). OSM reviewed the informal 
submissions and reported findings to Kentucky on March 30, 2001 
(Administrative Record No. KY-69).
    It should be noted that Kentucky's formal submission on April 29, 
2002, did not identify the specific changes being proposed. We 
subsequently reviewed the 635-page amendment to determine what 
revisions were made from the original plan. We completed our review on 
December 19, 2002. The proposed rule was published in the February 11, 
2003, Federal Register (68 FR 6838). Due to the voluminous nature of 
the submission, only major changes or those that may otherwise be of 
interest to the public were identified in the proposed rule notice. Any 
revisions not identified in the proposed rule concern nonsubstantive 
wording, organizational changes, or editorial changes. A complete 
description of the changes addressed in this rule notice can be found 
in the corresponding proposed rule, published in the February 11, 2003, 
Federal Register (68 FR 6838). However, we note that in some instances, 
the proposed rule described certain changes as ``added sections'' when, 
in fact, they consisted of language that had been moved from the OSM-
approved Errata Sheet of the original 1981 Plan into the main text of 
the Plan.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. We are 
approving the amendment. Any revisions that we do not specifically 
discuss below concern nonsubstantive wording or editorial changes. 
Except where otherwise indicated below, we find that these amendments 
do not change the objectives, scope or major policies followed by 
Kentucky in the conduct of its reclamation program.

Acquisition, Management, and Disposal of Lands (p. 6-9)

    The subtitle ``Management of Acquired Lands'' has been added. This 
subtitle provides that land acquired ``may be used for any lawful 
purpose that is not inconsistent with the reclamation activities and 
post-reclamation uses for which it was acquired.'' It also establishes 
that users of acquired lands will be charged a use fee and that all 
fees collected ``which are not used for the specific purpose of 
operating and maintaining improvement of the land will be deposited in 
the Abandoned Mine Reclamation Fund.''
    These proposed changes meet the criteria of the counterpart Federal 
regulations found at 30 CFR 879.14, which provide that ``[l] and 
acquired under this part may be used for any lawful purpose that is 
consistent with the necessary reclamation activities.'' The State's 
proposed changes has this same requirement as well as the additional 
caveat that acquired land may be used for any lawful purpose not 
inconsistent with the post-reclamation uses for which it was acquired. 
Additionally, Kentucky's proposed change meets the Federal requirement, 
also at 30 CFR 879.14, that procedures for the collection of user fees 
provide that all user fees collected be deposited in the appropriate 
Abandoned Mine Reclamation Fund. Therefore, we are approving the 
proposed changes.

Organization (p. 10-17)

    The subtitle ``Environmental Scientist Principal'' has been added. 
Chapter 10 of Kentucky's AML plan describes the title, class, duties, 
and minimum requirements of various employment positions within the 
organization. These provisions were previously approved by OSM because 
they meet the requirements of the counterpart Federal regulation found 
at 30 CFR 884.13(d). The addition of the description of the 
Environmental Scientist Principal position further clarifies the 
organization of the Plan and the responsibilities of individual 
employees. Therefore, we find that the proposed addition also meets the 
requirements of the counterpart Federal regulations, and we are 
approving it.

[[Page 65836]]

Coordination With Ramp, Indian, and Other Reclamation Plans (p. xvi)

    The Natural Resources Conservation Service is an agency of the U.S. 
Department of Agriculture and was formerly known as the Soil 
Conservation Service. Kentucky proposes to add ``Natural Resources 
Conservation Service'' throughout its plan to reflect this name change. 
These non-substantive changes are hereby approved.

Maps of Eligible Lands and Waters' (p. xix)

    Kentucky proposes to change the citation in the sub-heading for 
this subject from ``884.13(f)(1)'' to ``884.13(e)(1).'' This change was 
recommended by our Lexington Field Office because 30 CFR 884.13(e)(1), 
rather than 884.13(f)(1), requires a map showing the general location 
of known or suspected eligible lands and waters. Therefore, we are 
approving this change.

``Problems Occurring on A.M.L. Sites'' (p. xx), ``Relationship to 
Existing and Planned Land Uses'' (p. xx), and ``Social, Economic, and 
Environmental Conditions'' (pp. xx, xxi)

    Kentucky's Plan contains an ``Introduction'' that explains that the 
Plan is divided into sections designed to facilitate review by the 
public, and State and Federal agencies. The introduction lists these 
sections along with citations to the Federal regulations that require 
the Plan to contain each respective section. Kentucky proposed to 
change the listed Federal counterpart for the sections entitled 
``Problems Occurring on A.M.L. Sites,'' ``Relationship to Existing and 
Planned Land Uses,'' and ``Social Economic and Environmental 
Conditions.'' The proposed changes are from 30 CFR 884.13(f)(2) to 30 
CFR 884.13(e)(2); 30 CFR 884.13(f)(3) to 30 CFR 884.13(e)(3); and 30 
CFR 884.13(f)(5) to 30 CFR 884.13(f)(1), (2), and (3), respectively. We 
are approving the proposed changes since they refer to the appropriate 
Federal references and were made in accordance with OSM 
recommendations. Finally, Kentucky proposes to add, at page xxi, a 
reference to Section 19 of the Plan after the requirement of a general 
description of endangered and threatened plants, fish and wildlife, and 
their habitats. The reference to Section 19 is appropriate and is 
hereby approved, since that Section contains a socio-economic and 
cultural profile of the Kentucky coalfields, which are the lands for 
which the general descriptions of reclamation activities must be 
provided, as set forth on pages xx and xxi of the Plan.

Objectives (pp. 3-1, 3-2)

    Kentucky has deleted subsections (g), (h), (i), pertaining to 
noncoal mining, and (j), pertaining to construction of public 
facilities in communities impacted by coal development. Each of these 
subsections denotes an objective of the non-coal reclamation program 
that comes into existence only after the Governor of a State certifies 
to the Secretary that all reclamation priorities for eligible land and 
water adversely affected by past coal mining have been completed. See 
SMCRA section 411(a) and (b); 30 U.S.C. 1240(a) and (b). Because 
Kentucky has not yet reached the certification stage with its AML 
program, there is no need for the Plan to contain these post-
certification prioritizing criteria for non-coal reclamation. 
Therefore, we are approving the deletions of subsections (g), (h) and 
(i).
    In addition, the State has revised subsection (f) to meet the 
requirements of the Federal regulations at 30 CFR 875.12, pertaining to 
eligible lands affected by noncoal mining. Specifically, subsection 
(f), as amended, will allow the use of AML funds to reclaim noncoal 
sites with adverse effects that cause extreme danger to the public 
health, safety and general welfare. These funds may be used, upon 
request by the Governor and authorization by the Secretary, prior to 
certification by Kentucky that all coal mining reclamation problems 
have been addressed. We are approving this change because it meets the 
requirement of the Federal regulations at 30 CFR 875.12. We note that 
subsection (f) refers to ``pre-August 3, 1977'' noncoal mining, the 
term used in the Federal regulation, as ``past'' noncoal mining. This 
variation from the Federal language is acceptable because it is 
sufficiently similar to its Federal counterpart. Also, Kentucky has 
revised the last paragraph to address lower priority coal mining sites. 
This change was moved from the errata sheet of the approved 1981 Plan 
into the text. Therefore, its transfer to the text is approved without 
further discussion. Finally, subsection (f) has been revised to 
prohibit the use of AML monies for reclamation of sites designated for 
remedial action pursuant to the Uranium Mill Tailings Radiation Control 
Act of 1978 and the Comprehensive Environmental Response Compensation 
and Liability Act of 1980. We are approving this change because it 
meets the requirements of the Federal regulations at 30 CFR 875.16.

Goals and Objectives: Priority I and II Sites (p. 3-2)

    As previously approved by OSM, Kentucky's Plan contains a 
description of the Plan's goals. The Plan states that the principal 
goal of the AML program is to identify and correct adverse conditions 
caused by past mining practices on sites classified as Priority I. 
Following this statement is a paragraph explaining what Priority I and 
Priority II sites are. Under the previously-approved Plan, the heading 
to this paragraph was ``Priority I Sites.'' Kentucky proposed to revise 
the heading to include Priority II sites, because this section actually 
discusses both Priority I and Priority II sites. No other changes to 
the previously approved paragraph are proposed. Since the proposed 
change has no substantive effect on the program, we are approving the 
change.

Goals and Objectives: Priority III Sites (p. 3-4)

    This section, contained in the approved Errata Sheet for the 
original 1981 Plan, but now moved to the text of Chapter 3 of the Plan, 
explains which areas are classified as Priority III sites and lists 
reasons why work will be considered for priority III sites prior to 
reclamation of all Priority I and II sites. Kentucky's original plan 
listed four reasons, one being if ``the project will be used for 
research and demonstration purposes.'' Kentucky proposed to remove this 
justification for considering early work for priority III sites, 
presumably because Congress eliminated ``research and demonstration 
projects relating to the development of surface mining reclamation and 
water quality control program methods and techniques'' from the list of 
priorities for AML Fund expenditures contained in section 403(a) of 
SMCRA in its passage of the Energy Policy Act of 1992. This deletion 
changes the objectives followed by Kentucky in the conduct of its 
reclamation projects and, therefore, can only be approved in accordance 
with 30 CFR 884.14. See 30 CFR 884.15(a) (pertaining to State 
reclamation plan amendments). In reviewing this portion of the 
amendment, we have: Provided adequate notice and opportunity for 
comment on the amendment; solicited and considered the views of other 
Federal agencies having an interest in the amendment; found that the 
State continues to have the legal authority, policies and 
administrative structure necessary to carry out the proposed plan, as 
amended; found that the State continues to have an approved State 
regulatory program; and, determined

[[Page 65837]]

that the amendment is in accordance with all applicable State and 
Federal laws and regulations. Accordingly, we are approving the 
elimination of the research and demonstration project justification for 
early Priority III site reclamation.

Environmental Goals (p. 3-5)

    This section was added to the text of chapter 3 of the Plan, but 
was previously contained in the Errata Sheet for the 1981 Plan. It 
states that Kentucky's resources are to be protected or enhanced 
through AML reclamation including, but not limited to, important 
wildlife habitats, endangered or threatened plants and animals or their 
critical habitats, natural areas, wild and scenic rivers, wetlands, 
floodplains, soil and water, recreational resources, and agricultural 
productivity. Because this section has been retained exactly as it 
appeared in the Errata sheet, it remains approved.

Phase II Inventory (p. 3-6)

    The State proposes to comply with the requirements of the Federal 
regulations at 30 CFR 886.23(b) by using OSM procedures concerning the 
Abandoned Mine Land Inventory System, required by SMCRA section 403(c). 
We are approving this change because it explicitly requires compliance 
with a provision of the Federal regulations.

Small Operator Goals (pp. 3-6 to 3-8)

    This section has been revised to reference the authorizing statute 
at Kentucky Revised Statutes (KRS) 350.450. In addition, the State has 
amended its definition of small operators to include all those 
anticipated to mine less than 300,000 tons of coal per year. This 
change mirrors the Federal regulations at 30 CFR 795.6(a)(2), which 
also define small operators as those mining less than 300,000 tons per 
year. We are therefore approving this change.

Marketable Mineral Recovery (pp. 3-8, 3-9)

    This section has been revised to allow all contractors, rather than 
just small operators, to participate in the bidding for AML projects 
that involve incidental coal removal, although small operators will 
still receive preference. The change is intended to address the 
situation where small operators may occasionally lack the expertise, 
equipment, access, etc., to perform the needed work. Kentucky's 
practice of allowing only small operators to bid for AML contracts that 
involve the incidental removal of coal is set forth in the original 
Plan that we approved in 1982. See 47 FR 21435. However, because SMCRA 
neither mandates nor prohibits this practice, its elimination by 
Kentucky can likewise be approved.

Bond Forfeiture Projects (p. 3-9)

    This section has been amended to change the heading from 
``Supplementation of Eligible Bond Forfeiture Sites'' to ``Bond 
Forfeiture Projects.'' This change, already contained in the Errata 
Sheet that we approved in 1982, is now moved to the text of the Plan. 
It is non-substantive in nature and is hereby approved.
    The section was further revised by deleting all but the first 
paragraph, and by adding a paragraph that states that it is the policy 
of the Kentucky Division of Abandoned Mine Lands (DAML) that only 
eligible bond forfeiture sites are covered by the AML plan and that 
bond forfeiture sites must meet all priority and grant submission 
requirements that all other AML problem sites meet. This change in 
effect eliminated the previous specific requirements for bond 
forfeiture sites. This change is approved because it does not conflict 
with section 402(g)(4)(B)(ii) of SMCRA and 30 U.S.C. 1232(g)(4)(B)(ii), 
which created AML Fund eligibility for certain bond forfeiture sites.

Water Supply Projects (p. 3-10)

    Kentucky proposed this new section to comply with SMCRA section 
403(b)(1) and 30 U.S.C. 1233(b)(1), which authorizes States and Tribes 
to use up to 30 percent of their annual AML grants to fund projects for 
water supply facilities in areas that have suffered coal mining related 
impacts to drinking water supplies. Kentucky's new section states that:

    Title IV of SMCRA was amended in 1990 to allow a state to use up 
to 30% of its annual AML grant to fund projects for `* * * the 
purpose of protecting, repairing, replacing, constructing, or 
enhancing facilities relating to water supply, including water 
distribution facilities and treatment plants, to replace water 
supplies adversely affected by past coal mining practices.' Kentucky 
will use, at its discretion, up to 30% of its annual AML grant to 
provide drinking water to areas of the Commonwealth where water 
supplies have been adversely affected by AML.
    Eligibility of water supply projects and funding of the projects 
will be made based on guidelines developed and administered by the 
Division of Abandoned Mine Lands. Eligibility requirements will be 
developed jointly with the OSM.

Kentucky's proposal to use up to 30% of its AML grant for drinking 
water replacement meets the requirements of Federal law since SMCRA 
section 403(b)(1) allows such amount to be used for water replacement 
purposes. Therefore, we are approving the change.

Project Selection (pp. 4-8 to 4-11)

    Kentucky's plan includes a section providing the specific criteria 
used to identify and rank projects to be funded through the program. As 
previously approved, this subsection, designated as subsection V, 
discusses the development of AML construction grant applications. Under 
this subsection, projects to be included in a year's construction grant 
application are selected from a grant development action list. Those 
projects included in the action list are ``the known Priority I and II 
projects where the degree and imminency of impacts are most severe, 
plus those supplemental bond forfeiture reclamation areas yet 
unaddressed.''
    Kentucky proposed to amend subsection V by removing the phrase, 
``plus those supplemental bond forfeiture reclamation areas yet 
unaddressed.'' Thus, projects included in the action list would consist 
only of Priority I and II projects. The State also proposed to change 
references to the Assistant Director of the Division of Abandoned Mine 
Lands to references to the Director. Finally, Kentucky proposed to 
change the title of subsection V from ``Annual Construction Grant 
Application'' to ``Project Selection.'' This section has also been 
revised to reflect the current policy of including input from all 
professional staff in the project selection process and the process by 
which grant application elements are prepared for each project. We are 
approving the proposed changes because they meet the requirements of 
the Federal regulations at 30 CFR 884.13(c)(1), which require the State 
to describe its criteria for ranking and identifying projects to be 
funded by the AML program.

Coordination With RAMP, Indian, and Other Reclamation Programs (p. 5-1)

    In the second paragraph of page 5-1, the phrase ``30 CFR 
884.13(f)(5)(v), Flora and Fauna of the Coalfields,'' was deleted and 
replaced with the phrase ``30 CFR 884.13(f)(3), Endangered and 
threatened plant, fish and wildlife and their habitat.'' This change 
was made because the Federal regulation at 30 CFR 884.13(f)(5)(v) has 
been repealed, and because the correct reference is 30 CFR 
884.13(f)(3). This is not a substantial concern.

Lands for Permanent Facilities (p. 6-1)

    This section has been revised to incorporate the language at KRS 
350.570(3), which authorizes the Commonwealth of Kentucky to acquire

[[Page 65838]]

any land adversely affected by past coal mining practices, if 
acquisition is necessary for successful reclamation and if such 
acquisition is approved in advance by OSM. Federal regulations at 30 
CFR 879.11 authorize State acquisition of land adversely affected by 
past coal mining upon approval by OSM, if the land, after restoration, 
abatement, control or prevention of adverse effects of past coal mining 
practices, will serve recreational, historic conservation or provide 
open space benefits, and permanent facilities will be constructed on 
the land for the restoration, reclamation, abatement, control or 
prevention of the adverse effects of past coal mining practices. By 
contrast, the Kentucky AML Plan proposal would allow the State to 
acquire the lands if the lands will serve the enumerated (i.e., 
recreational, etc.) purposes or if permanent facilities will be 
constructed. As such, this revision does not comply with the Federal 
regulations or with section 407(c) of SMCRA. We are approving the 
proposed change to the extent that Kentucky will meet both criteria in 
their acquisition of lands. We are not approving the word ``or,'' which 
appears at the end of paragraph 1 of the section entitled ``Lands for 
Permanent Facilities.'' We note, however, that OSM approval is always 
required prior to acquisition of these lands and acquisition must be 
carried out in accordance with Federal law and regulations.

Acquisition of Real Property by Donation (p.6-3)

    This section has been revised to eliminate subdivision 2(e), which 
requires itemizations of any unpaid taxes or assessments levied, 
assessed or due which could operate as a lien on the interest offered, 
and subdivision 2(f), which states that a deed of conveyance shall be 
executed, acknowledged and recorded in the name of the Commonwealth of 
Kentucky after acceptance of an offer.
    The Federal regulations at 30 CFR 879.13(b) allow States to use 
applicable State law when accepting donations of land. Therefore, we 
are approving the deletion of the above provisions with the 
understanding that Kentucky will continue to follow all applicable 
State laws when accepting donations of real property.

Step-by-Step Procedure for Land Acquisition (pp. 6-4 through 6-9)

    Kentucky has revised this section by updating the names of 
departments and titles of certain departmental officials. As these 
revisions do not have a substantive effect on the State's AML program, 
we are approving them.

Management of Acquired Lands (p. 6-9)

    Kentucky has proposed to move this section from the approved Errata 
Sheet for the original 1981 Plan into the text of Chapter 6 of the 
plan. It is intended to comply with the requirements at 30 CFR 
884.13(c)(4), which requires a description of policies and procedures 
regarding land acquisition, management and disposal. Specifically, this 
section corresponds to the Federal regulations at 30 CFR 879.14, 
``Management of acquired land.'' Because the provision is identical in 
substance to the one approved by OSM in 1982 and contained in the 
Errata Sheet, it remains approved in its new location.

Disposition of Reclaimed Lands (p. 6-10)

    Kentucky has proposed to revise this section by adding a 
requirement that the appraised value of a property be stated in a land 
disposition notice. This change is based on recommendations made by OSM 
in the 1981 OSM Review (Administrative Record No. KY-57). With this 
change, the Plan remains in compliance with the Federal regulations at 
30 CFR 879.15, pertaining to disposition of reclaimed land. Therefore, 
the change is approved. Also, the State elected to allow land sales to 
be conducted by either public auction or sealed bid, whereas the 
approved Errata Sheet for the 1981 Plan allowed sealed bids to be 
accepted prior to the sale date, followed by a public auction. This 
change likewise leaves the Plan in compliance with the Federal 
regulations at 30 CFR 879.15, and it is therefore approved.

Reclamation on Private Lands (pp. 7-4 to 7-6)

    Kentucky has proposed to revise these sections as follows:
    (1) Levy of Lien: Addition of a requirement that the landowner be 
provided a statement of the increase in market value, an itemized 
statement of reclamation expenses, and notice that a lien will or will 
not be filed in accordance with 30 CFR 882.13.
    In this case, the Kentucky revisions are more stringent than the 
Federal requirements at 30 CFR 884.13. The Federal program requires 
that within 60 days of filing a lien the property owners may petition 
under local law to determine the increase in market value to their land 
and may appeal any decisions under local law. Under the new section of 
State law, within 60 days of the reclamation work, the land owner shall 
be notified of the above. Landowners are given an opportunity to appeal 
any increases in market value within 60 days of the lien being filed. 
Although the Kentucky law, as proposed, does not allow for the specific 
appeal of the lien itself, any liens are only possible where there is 
an increase in property value. Thus, here the landowner's rights are 
still protected. We are therefore approving this change.
    (2) Satisfaction Of Liens: The reference to ``State Abandoned Mine 
Reclamation Fund'' is changed to ``Abandoned Mine Reclamation Fund,'' 
and Appendix 7-A and Attachment 7-1 have been deleted.
    This change was recommended by OSM since there is not a State 
Abandoned Mine Reclamation Fund in Kentucky. Kentucky works under 
grants of State and Secretary share monies from the Abandoned Mine 
Reclamation Fund defined under SMCRA. If Kentucky someday does decide 
to have a State Abandoned Mine Reclamation Fund it will have to be 
legislated and could be used to account/administer set aside funds 
given them from the AML Fund, since these monies cease to be ``AML 
Funds'' once given to the State. Furthermore, Appendix 7-A and its 
Attachment 7-1 pertain only to contracting for reclamation of pre and 
post law coal mining permits for which the performance bond has been 
forfeited. The DAML administers forfeited bond money to accomplish 
reclamation as a collateral duty. DAML has a separate section within 
their Construction Branch that handles bond forfeiture planning and 
reclamation, which is accounted separately from AML work to reflect 
Title V costs for Kentucky I&E (Title V) Grant debiting. Therefore, 
these procedures are best documented by DAML as standard operating 
procedures rather than being in the AML Plan. As such, we find that 
these amendments are approvable, as they do not render the State 
program less effective than the Federal requirements.

Rights of Entry (pp. 8-7 and 8-18)

    Kentucky has revised their program so that the reference to 
``Division of Abandoned Lands (DAL)'' has been changed here, and 
throughout the document, to ``Division of Abandoned Mine Lands 
(DAML).'' As this change is not substantive, and therefore will not 
render the State program less effective than the Federal program, we 
are approving it.

Personnel Staffing Policies (pp. 11-1 and 11-3)

    Kentucky has revised their program in accordance with Federal 
requirements

[[Page 65839]]

to require that all personnel assignments will comply with ``Title VII 
of the Civil Rights Act of 1964 (PL 88-352).'' This change complies 
with 30 CFR 884.13(d)(2), which requires a description of the personnel 
staffing policies which will govern the assignment of personnel to the 
State reclamation program. It also assures that the Kentucky program is 
in compliance with applicable Federal law governing personnel 
assignments. We are approving this change.

Purchasing and Procurement Systems (pp. 12-1, 12-4, and 12-6)

    Kentucky has proposed a revision to its program on page 12-1, 
paragraph 6, that would delete the reference to Public Law 95-87 
(SMCRA) and add references to Chapter 3 of the AML Plan, pertaining to 
Small Operator Goals, and to 30 CFR 884.13(c)(1). These changes were 
contained in the 1981 Errata Sheet for the original Plan, both of which 
we approved in 1982, and are now incorporated into the text of the Plan 
in identical form. Therefore, the changes are approved.
    The subsection pertaining to purchase requisitions is being revised 
to reflect the current procedure for reviewing and approving 
requisitions. Specifically, three new paragraphs are added to the 
beginning of the Purchase Requisition section on page 12-4. These new 
paragraphs state that project plans are selectively reviewed and 
revised, if necessary, by the staff of the Commissioner of the 
Department for Surface Mining Reclamation and Enforcement (DSMRE) and, 
if approved are then returned to the DAML, where a purchase requisition 
is prepared for the Director to review and sign. After they are signed, 
the plans are sent to the Division of Administrative Services, which 
reviews the purchase requisition for accuracy and form, and to insure 
that sufficient funds are available.
    This section, in effect, re-delegates the function and 
responsibility of purchase requisition review, approval, and 
processing. The changes comply with the Federal regulations at 30 CFR 
884.13(d)(3), which require a description of the purchasing and 
procurement systems to be used by the agency that administers the AML 
Plan. Therefore, the additional paragraphs are approved.
    Kentucky has proposed a revision to the first paragraph on page 12-
6 to read: ``When an apparent low bidder is identified for any AML 
reclamation contract, the Division of Abandoned Lands forwards the low 
bidder's name, Federal tax number, social security numbers and other 
information as required to the Ownership and Control Review section of 
the Division of Permits of the Kentucky Department of Surface Mining 
for an Applicant Violator System (AVS) check for permit eligibility, in 
accordance with 30 CFR 874.16. Before the contract is awarded to the 
apparent low bidder an AVS confirmation of permit eligibility will be 
received from the AVS check.''
    This revision effectively updates the Kentucky program to be in 
compliance with the Federal regulations at 30 CFR 874.16, pertaining to 
AML contractor eligibility, and with the standard for AVS reviews. This 
proposed change is approved.
    Also on page 12-6, the fourth sentence of the first paragraph is 
revised by deleting the statement that the Commonwealth has the right 
to ``waive all informalities and technicalities of a bid when, in their 
judgment, the best interest of the Commonwealth of Kentucky may be 
served.'' A sentence is then added immediately after the revised fourth 
sentence. The new sentence states that ``[a]ll rejections of bids or 
waivers will be in accordance with requirements of Office of Management 
and Budget (OMB) Circular A-102, and applicable State or local law.'' 
We previously approved these revisions in the Errata Sheet for the 
original 1981 Plan. This proposal merely transfers the revisions to the 
text of the Plan, and is therefore approved without further discussion.

Construction (pp. 12-7 and 12-8)

    Kentucky has deleted the subsections, ``Monthly Reports for Office 
of Surface Mining'', ``Final Report for the Office of Surface Mining'' 
and ``Change Orders,'' in their entirety. In addition, the phrase, 
``and change orders,'' at the end of the first paragraph on page 12-7 
has been deleted.
    Kentucky has also inserted the sentence ``guidelines pertaining to 
change orders will be developed by the Division Director as needed'' as 
the last sentence of the ``Project Inspection'' subsection.
    OSM currently analyzes reports under oversight. The monthly reports 
to OSM noted in the previously-approved Plan were designed to keep OSM 
informed of Kentucky's progress during the startup of the Kentucky 
program in the early 1980's and were sent to the Knoxville Regional 
Office, which no longer exists. All monitoring and oversight of the 
Kentucky AML program has been moved to the Lexington Field Office, 
thereby rendering the reporting required by the deleted subsections 
unnecessary. In addition, the State has produced and follows internal 
standard operating procedures for change orders, which we review under 
normal oversight, and notifies us of significant change orders under a 
provision of our Directive AML-22 Performance Agreement for oversight 
purposes of their construction management process. Because there is no 
Federal requirement that States file monthly reports, final reports, 
with OSM, or that change orders or major revisions be approved by OSM, 
we are approving these changes.

AML Enhancement Rule (p. 12-9)

    Kentucky has added the subsection ``AML Enhancement Rule.'' This 
additional section incorporates OSM's AML Enhancement Rule at 30 CFR 
874.17 by reference. The rule provides guidance and procedures for AML 
programs when considering an AML project as government-financed 
construction under 30 CFR Part 707 where the level of funding will be 
less than 50 percent of the total cost of planned coal extraction. 
Because this change will add to the universe of projects that are 
eligible for AML funding (i.e., projects that involve the incidental 
removal of coal and that are less than 50% government financed), it 
changes the scope of Kentucky's AML program. Therefore, the change can 
only be approved in accordance with 30 CFR 884.14. See 30 CFR 884.15(a) 
(pertaining to State reclamation plan amendments). In reviewing this 
portion of the amendment, we have: provided adequate notice and 
opportunity for comment on the amendment; solicited and considered the 
views of other Federal agencies having an interest in the amendment; 
found that the State continues to have the legal authority, policies 
and administrative structure necessary to carry out the proposed plan, 
as amended; found that the State continues to have an approved State 
regulatory program; and, determined that the amendment is in accordance 
with all applicable State and Federal laws and regulations. The 
incorporation, by reference, of OSM's AML Enhancement Rule is therefore 
approved. However, we note that the United States Court of Appeals for 
the District of Columbia Circuit has, in part, remanded the Federal AML 
Enhancement Rule for further consideration. Specifically, the court 
ordered OSM to explain how it can reasonably construe the term 
``government-financed'' to include ``expenses incurred directly or 
indirectly by [an] AML agency,'' even where the ``AML contractor 
receives no funds at all from the government.'' Kentucky Resources 
Council v. Norton, 2002 U.S. App. Lexis 11365, Slip. Op.

[[Page 65840]]

at 5. (D.C. Cir. May 30, 2002). Therefore, our approval of the Kentucky 
AML Plan provision incorporating the Federal AML Enhancement Rule by 
reference is subject to the restrictions placed upon the Federal 
regulation by the court. Moreover, Kentucky may be required to further 
amend its AML Plan to conform with future revisions to the AML 
Enhancement Rule that will be carried out in an effort to comply with 
the court's remand order.

Reclamation Agreements (p. 10-12)

    In this subsection, Kentucky proposes to allow operators to enter 
into reclamation agreements with the Division of Abandoned Mine Lands 
for the purpose of removal of excess spoil from adjacent or nearby 
active permitted operations and subsequent placement on AML sites. 
Placement of excess spoil on adjacent abandoned mine land has been 
addressed previously in other rulemaking. Specifically, in a July 9, 
1991, letter to Ohio (Administrative Record No. OH-1546), the Director 
of OSM clarified OSM's position concerning the standards and 
requirements which apply to the usage of excess spoil for reclamation 
of abandoned mine land sites. OSM focused on the parameters for excess 
spoil disposal outside the permit area as established, in part, in 
several final rules approving such a provision in the West Virginia 
program (45 FR 69254-69255, October 20, 1980; 46 FR 5919, January 21, 
1981; and 55 FR 21328-21329, May 23, 1990).
    In the January 21, 1981, Federal Register announcing approval of 
the West Virginia program (46 FR 5919), the Secretary found that, for 
purposes of excess spoil disposal, a reclamation contract governing 
work to be performed on a Federal AML reclamation grant project is the 
equivalent of permit and bond under Title V of SMCRA. In the May 23, 
1990, Federal Register (55 FR 21329), OSM found that West Virginia's 
proposed disposal of excess spoil on a Federally funded AML reclamation 
project is approvable provided the spoil is not necessary to restore 
approximate original contour (AOC) on or otherwise reclaim the active 
mine. In addition, as stated in the May 23, 1990, Federal Register, 
fills are not to be created on AML reclamation projects. Spoil 
deposited on such sites may be used only to complete reclamation and to 
return the site to its AOC. OSM restricted eligibility for such spoil 
deposition to AML reclamation projects funded through the Federal AML 
grant process. The Director finds that Kentucky's proposal regarding 
placement of excess spoil meets these requirements for AML reclamation 
projects authorized through the Federal AML grant process, for the 
reasons set forth below.
    First, Kentucky's proposal requires that the excess spoil placed on 
an abandoned site will be ``for use as cover material and a growth 
medium for vegetation.'' As such, the amount of excess spoil placed 
thereon will not exceed that required to restore that site to AOC. 
Therefore, valley, head-of-hollow and durable rock fills will not be 
constructed on these AML sites, because the amount of material 
deposited to form a fill would far exceed that necessary for use as 
cover material and as a growth medium for revegetation.
    Second, the proposal requires that the ``site must be designated as 
an active AML project during all reclamation activity and will be 
subject to oversight by (Kentucky) inspection personnel.'' This is 
interpreted to mean the project is to be administered as a Federally-
funded AML project authorized through the Federal AML grant process, 
which must comply with requirements of the Federal Assistance Manual 
(OSM Directive AML-10) and the National Environmental Policy Act of 
1969 (NEPA). The environmental safeguards that therefore will apply 
should ensure that the excess spoil is placed in an environmentally-
sound fashion, and that placement will not destroy or degrade features 
of environmental value.
    Third, and finally, the Director finds that the proposal contains 
sufficient performance incentives to require compliance with all 
applicable requirements, since the proposal states that the ``AML site 
will be maintained, as determined by (Kentucky), by the contractor 
through the entire bond liability period of the permitted site from 
which the excess spoil originated'' and should the contractor ``fail to 
honor or satisfy the agreement, (Kentucky) may require the company to 
obtain a permanent program permit under Title V for the affected area. 
In addition, Kentucky always has AML grant funds available to reclaim 
these sites in the event that the operator defaults on the terms of its 
contract, all Title V enforcement options are exhausted, and the AML 
reclamation contract performance bond is insufficient to complete 
reclamation.

Accounting Systems (p. 13-1)

    Kentucky has revised this subsection to update organizational title 
and office changes. As this change is not substantive, and therefore 
will not render the State program less effective than the Federal 
program, we are approving it. This determination is based on 
recommendations made by OSM in the 1981 OSM Review (Administrative 
Record No. KY-57).

Maps of Eligible Lands and Waters (p. 15-1)

    Kentucky has reworded the first paragraph to better clarify AML 
eligibility by referencing ``Section 404 ``Eligible Lands and Water'' 
and/or 402(g)(4) of Title IV of Public Law 95-87 and/or KRS 350.560''. 
This change provides additional clarification of which sites are 
eligible for reclamation with Kentucky AML grant funds. Because this 
amendment refers to the appropriate Federal and State laws governing 
AML site eligibility, we are hereby approving it. This determination is 
based on recommendations made by OSM in the 1981 OSM Review 
(Administrative Record No. KY-57).

Problems Occurring on Abandoned Mine Land Sites (pp. 16-3, 16-5, 16-9 
and 16-12)

    On page 16-3, first paragraph (Environmental Damage), line 3, 
Kentucky has added the phrase ``including adverse impacts on endangered 
and threatened species'' directly after the phrase ``loss of fish and 
wildlife habitat.'' Also on page 16-3, in the paragraph entitled 
``Surface/Groundwater Contamination,'' the phrase ``including adverse 
impacts on endangered and threatened species'' is added after the 
phrase ``aquatic vegetation.''
    On page 16-5, at the end of the paragraph entitled ``Erosion,'' the 
following sentence is added: ``On-site erosion and sediment control 
techniques will be used wherever practicable and feasible to minimize 
erosion and retain sediment within the disturbed area or limit the 
volume of sediment leaving the project site.'' Also on page 16-5, at 
the end of the paragraph entitled ``Reduced Fish and Wildlife 
Habitat,'' the following sentence was added: ``Unvegetated areas may 
also cause adverse impacts on endangered and threatened species.''
    On pages 16-6 and 16-7, a new section, entitled ``Abandoned 
Highwalls,'' was added. This section enumerates and discusses problems 
generally associated with abandoned highwalls on AML sites. These 
problems include, but are not limited to, threats to life, health and 
safety, reduced wildlife habitat, attractive nuisances for children or 
hikers, and adverse impact on aesthetic, historical, cultural, or 
recreational resources. The new section also discussed certain

[[Page 65841]]

reclamation techniques to correct or abate these problems, including 
highwall reduction by bench reconstruction, re-establishment of 
wildlife routes by pulling down highwall sections, or screening or 
covering the highwall with appropriate species to enhance wildlife 
values and reduce aesthetic degradation.
    On page 16-9, in the paragraph entitled ``Limitation of loss of 
habitat,'' the sentence has been changed by adding at the end the 
phrase ``and runoff from burned areas may impede or prevent utilization 
of water resources by aquatic life.'' Also, a second sentence is added, 
which states that ``[s]uch [forest] fires can have adverse impacts on 
endangered or threatened species.''
    On page 16-12, at the end of the paragraph entitled ``Limitation or 
loss of fish and wildlife habitat,'' the following sentence was added: 
``This [limitation or loss of fish and wildlife habitat] problem is 
especially serious for those endangered or threatened species, such as 
Federally listed bats, which inhabit caves or mine shafts subject to 
subsidence.''
    All of these changes to section 16 were previously contained in the 
Errata Sheet for the 1981 Plan, both of which we approved in 1982, and 
are merely being transferred to the text of the Plan. Therefore, we are 
approving the transfers without further discussion.

Relationship to Existing and Planned Land Use (pp. 17 B1, 17-6, and 17-
7)

    Kentucky has revised this section to recognize the presence of 
endangered or threatened species during reclamation and land use 
planning. A sentence has been added on page 17-6, stating that the Big 
South Fork National River and Recreation Area has been adversely 
affected by erosion, sedimentation and acid mine drainage from AML 
sites. On pages 17-6 and 17-7, it is noted that commercial forest land 
in the Eastern Kentucky Coalfield includes 670,000 acres of the Daniel 
Boone National Forest. These revisions to section 17 were previously 
contained in the Errata Sheet for the 1981 Plan, both of which we 
approved in 1982, and are merely being transferred to the text of the 
Plan. Therefore, we are approving the transfers without further 
discussion.

Quantities of Land and Water Affected by A.M.L. (p. 18-1)

    Kentucky has added the following two sentences on page 18-1, at the 
end of the first paragraph: ``Not all of the acres listed are priority 
I or II sites. The acreages represent an approximation of the total 
mined acres in each coalfield, some of which may be determined to be 
acceptable in their current state or may require limited efforts to 
correct remaining problems.'' This revision to section 18 was 
previously contained in the Errata Sheet for the 1981 Plan, both of 
which we approved in 1982, and is merely being transferred to the text 
of the Plan. Therefore, we are approving the transfer without further 
discussion.

Socio-Economic and Cultural Profile of the Coalfields (p. 19-23)

    Kentucky has changed the first sentence of ``The Redbird Purchase 
Unit'' paragraph to make it clear that the unit is not purely a 
recreational area. This revision to section 19 was previously contained 
in the Errata Sheet for the 1981 Plan, both of which we approved in 
1982, and is merely being transferred to the text of the Plan. 
Therefore, we are approving the transfer without further discussion.

Flora and Fauna of the Coalfields (Chapter 21)

    Kentucky has revised its program to include references to the 
National Environmental Policy Act of 1969 (NEPA), as amended (42 
U.S.C., 4321 et seq.), and Executive Orders 11988 and 11990 on page 21-
77. This change is approved as a non-substantive change because it 
merely notes that NEPA and the aforementioned Executive Orders, along 
with other statutes already listed, require that fish and wildlife be 
considered in the initial reclamation planning for a project.
    Kentucky has added a requirement for DSMRE to consult with the 
Kentucky Department of Fish and Wildlife Resources regarding the 
existence of Federally endangered or threatened species during the NEPA 
review process on page 21-79. We are approving this change because the 
Kentucky Department of Fish and Wildlife Resources is the appropriate 
state agency for purposes of consultation with respect to endangered or 
threatened species.
    Kentucky has added the current title of the ``Natural Resources and 
Environmental Protection Cabinet'' to its AML plan. As this change does 
not substantively affect the Kentucky AML program, it is approved.
    Kentucky has also revised its program to incorporate NEPA 
compliance measures into the AML plan rather than the previous 
requirement to do an ``environmental assessment.'' We are approving 
this change because it more accurately accounts for the varying levels 
of review that may be required pursuant to NEPA.
    Kentucky has added numerous changes to the text of its AML Plan 
that are composed mostly of additional references to various species of 
flora and fauna. These changes were previously contained in the Errata 
Sheet for the 1981 Plan, both of which we approved in 1982, and are 
merely being transferred to the text of the Plan. Therefore, we are 
approving the transfers without further discussion.

Commercially Minable Coal Seams and Projects, Methods of Extraction 
(pp. 22-5, 22-14, 22-24, and 22-26)

    The Figure 22-2, ``Preliminary Correlation Chart of Coal Beds and 
Key Beds of the Pennsylvanian Rocks of Eastern Kentucky,'' has been 
added and the section has been revised to present options in 
determining remining feasibility, and to eliminate references to Site 
Score Sheets and matrices to rank AML sites. The references to be 
deleted are found on page 22-22 of the currently approved AML plan, and 
are discussed further below.
    The State has eliminated the use of Site Score Sheets and matrices 
to rank AML sites, and approved a new system that is found in Chapter 4 
of the current plan, ``Project Ranking and Selection Procedures'' which 
was approved on July 14, 1987 (52 FR 26299). Based on that change, we 
recommended that the references in Chapter 22 to these previously 
removed features be removed from Chapter 22 of the current plan 
amendment as well. Kentucky has complied with this suggestion and we 
thus find that these deletions render the State AML program internally 
consistent with respect to AML site ranking and hereby approve them.
    The sentences inserted to provide options in determining remining 
feasibility are found on page 22-14 of this amendment, and state that 
``Kentucky may use different systems to analyze the consideration for 
probability for remining. In 1980, the Kentucky Geological Survey 
developed a system of moderate complexity for ranking probability of 
remining.'' We are approving this change because it accords with the 
elimination of the references to Site Score Sheets.
    On page 22-26, pertaining to non-coal minerals, Kentucky has 
deleted the reference to the Site Score Sheet, but the potential for 
non-coal mineral recovery remains a factor to be considered when 
ranking AML sites. This deletion is approved for the reasons stated 
above in this same finding. In that same paragraph, the following four 
sentences are being added: ``Extraction of these non-coal minerals in 
the Commonwealth may take place by any of several methods. Petroleum 
and natural gas are extracted through the

[[Page 65842]]

sinking of wells. Clay, rock asphalt, sand and gravel are commonly 
extracted through methods of surface mining. Limestone, flourspar, and 
oil shale, in addition to methods of surface mining, are also commonly 
extracted through deep mining.'' This addition was previously contained 
in the Errata Sheet for the 1981 Plan, both of which we approved in 
1982, and is merely being transferred to the text of the Plan. 
Therefore, we are approving the transfer without further discussion.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. KY-72). We did not receive any comments from the public.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Kentucky program (Administrative 
Record No. KY-72). We received one comment from the U.S. Fish and 
Wildlife Service (USFWS), one from the U.S. Department of Labor's Mine 
Safety and Health Administration (MSHA), and one from the U.S. 
Department of Agriculture's Natural Resource Conservation Service 
(NRCS).
    We received a letter from the USFWS dated March 14, 2003 
(Administrative Record No. KY-72). The letter indicated that the USFWS 
was interested in four sections of the AML plan changes. First, it 
indicated that it concurs with the changes to the AML Enhancement Rule 
(p. 12-9), as it may reduce the impacts to fish and wildlife resources 
on active mining permit areas, increase the number of AML projects that 
can be completed each year, and enhance additional habitat for fish and 
wildlife through AML reclamation projects. Second, the USFWS indicated 
support for the addition of the new subsection Reclamation Agreements 
(p. 12-10) because the site-specific removal of excess spoil will 
enhance reclamation on AML sites. Third, it supports the additions of 
sections relating to threatened and endangered species at Problems 
Occurring on Abandoned Mine Land Sites (pp. 16-3, 16-5, 16-9, and 16-
12). In addition, to the extent that soils will not be compacted and 
the site's ability to reforest be jeopardized, it supports the addition 
of the erosion minimization and sediment retention techniques. We agree 
with the USFWS on this matter and recognize concerns associated with 
soil compaction. Finally, the USFWS indicated that it has a concern 
with the section Flora and Fauna of the Coalfields (Chapter 21, p. 21-
79), such that it suggests that Kentucky should consult with it, in 
addition to the Kentucky Fish and Wildlife Service, regarding the 
existence of Federally listed species when implementing the Endangered 
Species Act. We acknowledge this concern and recognize that the USFWS 
has jurisdiction over both Federally listed species and the Federal 
Endangered Species Act. The USFWS concern in this case is handled by 
OSM policy set in OSM Directive GMT-10 ``Federal Assistance Manual''. 
In accordance with this policy, OSM has the responsibility for 
environmental compliance with NEPA. However, policy provides that 
initial preparation of the environmental review document and initial 
consultations may be completed by the State. Final review, 
consultation, and authorization of the environmental review document 
rests with OSM. By agreement with Kentucky, OSM performs the 
consultation responsibility with the USFWS. The USFWS concerns in this 
case are therefore satisfied by OSM policy, rather than the Kentucky 
AML Plan.
    We received a letter from the MSHA dated March 13, 2003 
(Administrative Record No. KY-72). MSHA indicated that the changes to 
the AML plan would not have an impact concerning its office or 
jurisdiction.
    We received a letter from the NRCS dated March 10, 2003 
(Administrative Record No. KY-72). NRCS indicated that it concurs with 
Kentucky's proposals to update its AML plan, thereby bringing it up to 
date with current Federal regulations. The NRCS also stated that while 
it concurs with the changes made concerning coordination with the Rural 
Abandoned Mine Program formerly administered by NRCS, there are 
concerns about the funding longevity of the program as it has been 
taken ``off budget.'' We also share this concern, however it falls 
outside of the scope of our jurisdiction and as such we are unable to 
respond to this comment in our approval of Kentucky's AML plan 
amendment.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(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.). There are no such provisions in this amendment, 
so we did not seek EPA concurrence. Furthermore, the EPA did not 
comment on the proposed changes to the Kentucky AML Plan.

State Historic Preservation Officer (SHPO) and the Advisory Council on 
Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On June 12, 2002, we requested comments on Kentucky's 
amendment (Administrative Record No. KY-72), but neither the SHPO nor 
the ACHP responded to our request.

V. OSM's Decision

    Based on the above findings, we are approving Kentucky's proposed 
amendment, except as follows. We are not approving the word ``or,'' 
which appears at the end of paragraph 1 of the section entitled ``Lands 
for Permanent Facilities.'' We are approving the incorporation by 
reference of the Federal AML Enhancement Rule subject to the 
restrictions placed upon the Federal regulation by the court in 
Kentucky Resources Council v. Norton, supra. Finally, the ``Reclamation 
Agreements'' provision at the end of Chapter 12 is approved only to the 
extent that it applies to AML reclamation projects authorized through 
the Federal AML grant process. The Federal regulations at 30 CFR part 
917 codifying decisions concerning the Kentucky AML Plan are being 
amended to implement this decision. Consistency of State and Federal 
standards is required by SMCRA.

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 and Tribal abandoned mine land reclamation plans

[[Page 65843]]

and plan amendments because each plan is drafted and promulgated by a 
specific State or Tribe, not by OSM. Decisions on proposed abandoned 
mine land reclamation plans and plan amendments submitted by a State or 
Tribe are based soley on a determination of whether the submittal meets 
the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR 
Part 884 of the Federal Regulations.

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 abandoned mine land reclamation programs. 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 405(d) of SMCRA requires State abandoned 
mine reclamation programs be in compliance with procedures, guidelines, 
and requirements established by 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 final 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 agency decisions on proposed State and Tribal abandoned mine 
land reclamation plans and plan amendments are categorically excluded 
from compliance with the National Environmental Policy Act (42 U.S.C. 
4332) by the Manual of the Department of the Interior (516 DM 6, 
appendix 8, paragraph 8.4B(29).

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. Hence, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. 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 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: August 27, 2003.
Brent Walquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 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.  917.21  [Amended]

0
2. Section 917.21 is amended by adding paragraph (d) to read as 
follows:
* * * * *
    (d) The Kentucky Abandoned Mine Land Reclamation Plan amendment, 
submitted to OSM on April 29, 2002, is approved with the following 
exceptions. The word ``or,'' which appears at the end of paragraph 1 of 
the section entitled ``Lands for Permanent Facilities,'' is not 
approved. We are approving the State of Kentucky's incorporation by 
reference of the Federal AML Enhancement Rule into their regulations. 
This approval is subject to the restrictions placed upon the Federal 
regulation by the court in Kentucky Resources Council v. Norton, 2002 
U.S. App. Lexis 11365, Slip. Op. at 5. (D.C. Cir. May 30, 2002) The 
``Reclamation Agreements'' provision at the end of Chapter 12 only 
applies to AML reclamation projects authorized through the Federal AML 
grant process. Copies may be obtained at the address listed in (a)(2) 
of this section for OSM or the Commonwealth of Kentucky, Natural 
Resources and Environmental Protection Cabinet, Division of Abandoned 
Mine Lands, 2521 Old Lawrenceburg Road, Frankfort, Kentucky 40601.

[FR Doc. 03-28995 Filed 11-21-03; 8:45 am]
BILLING CODE 4310-05-P