[Federal Register Volume 69, Number 177 (Tuesday, September 14, 2004)]
[Proposed Rules]
[Pages 55373-55375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20660]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-248-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 receipt of information from Kentucky 
pertaining to its regulatory program (the ``Kentucky program'') under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act). Kentucky submitted examples of common husbandry practices in 
response to a required amendment. We are reviewing that information to 
determine if it satisfies our requirements. If so, the required 
amendment will be removed and the provisions previously disapproved 
will be approved. The decision will be announced in a future Federal 
Register notice.
    This document gives the times and locations that the Kentucky 
program and this submittal are available for your inspection, the 
comment period during which you may submit written comments, and the 
procedures that we will follow for the public hearing, if one is 
requested.

DATES: We will accept written comments until 4 p.m., e.s.t., October 
14, 2004. If requested, we will hold a public hearing on October 9, 
2004. We will accept requests to speak until 4 p.m., e.s.t., on 
September 29, 2004.

ADDRESSES: You may submit comments, identified by ``KY-248-FOR/
Administrative Record No. 1634'' by any of the following methods:
     E-mail: [email protected].
     Mail/Hand Delivery: William J. Kovacic, Lexington Field 
Office, Office of Surface Mining Reclamation and Enforcement, 2675 
Regency Road, Lexington, Kentucky 40503, Telephone: (859) 260-8400.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
docket number ``KY-248-FOR/Administrative Record No. KY-1634'' for this 
rulemaking. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Comment Procedures'' section in this document. You may also request to 
speak at a public hearing by any of the methods listed above or by 
contacting the individual listed under FOR FURTHER INFORMATION CONTACT.
    Docket: You may review copies of the Kentucky program, this 
submission, a listing of any scheduled public hearings, and all written 
comments received in response to this document at OSM's Lexington Field 
Office at the address listed above during normal business hours, Monday 
through Friday, excluding holidays. You may receive one free copy of 
the submission by contacting OSM's Lexington Field Office.
    In addition, you may receive a copy of the submission during 
regular business hours at the following location:
    Department for Natural Resources, 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 Submission
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 Submission

    By letter dated July 29, 2004, Kentucky sent us information 
pertaining to its program, ([KY-248-FOR], Administrative Record No. KY-
1634), under SMCRA (30 U.S.C. 1201 et seq.), in response to a required 
amendment at 30 CFR 917.16(i). A portion of the required amendment 
resulted from OSM's decision on June 9, 1993, to not approve proposed 
changes to 405 Kentucky Administrative Regulations (KAR) 16:200 
sections 1(7)(a), (7)(a)1 through 5, 1(7)(b), and 1(7)(d) (58 FR 
32283). The finding stated, in part, that Kentucky (unlike other 
States) had not submitted any administrative record information to 
demonstrate that its proposed practices were normal husbandry practices 
within Kentucky.
    Kentucky has now submitted examples of common husbandry practices 
``that would be encountered on lands in Kentucky and would not restart 
or extend the bond liability period.'' The examples pertain to the 
following categories of lands: hayland or pasture; forestland, 
commercial forestry, or fish and wildlife; and commercial, industrial, 
residential, or recreational. Kentucky references materials from the 
Kentucky College of Agriculture Cooperative Extension Service and the 
University of Kentucky, as well as practices recognized by other 
regulatory agencies. It notes that the University of Kentucky's ongoing 
research could lead to improved silvicultural and agricultural 
production which may result in future changes to husbandry practices.
    We will review the information that Kentucky has submitted to 
determine if the practices meet the criteria identified in the notice. 
If the practices meet the requirements, we will approve the previously 
disapproved provisions and

[[Page 55374]]

remove the required amendment at 30 CFR 917.16(i).
    The full text of the submission is available for you to read at the 
locations listed above under ADDRESSES.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the submission satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the submission, it 
will become part of the program.

Written Comments

    Send your written 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. In the final rulemaking, we will not consider or 
include in the administrative record any comments received after the 
time indicated under DATES or at locations other than the Lexington 
Field Office.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: KY-248-FOR/Administrative Record No. KY-1634'' and your name 
and return address in your Internet message. If you do not receive a 
confirmation that we have received your Internet message, contact the 
Lexington Field Office at (859) 260-8400.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on 
September 29, 2004. 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 the hearing. To assist the 
transcriber and ensure an accurate record, we request, if possible, 
that each person who speaks at a 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 submission, 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 
regulations.

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, to the 
extent allowable by law, 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 since each such 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. 
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 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.

[[Page 55375]]

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

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 has determined 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 that 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. Accordingly, 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, geographic regions, or Federal, State or local governmental 
agencies; 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 a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 13, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 04-20660 Filed 9-13-04; 8:45 am]
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