[Federal Register Volume 70, Number 44 (Tuesday, March 8, 2005)]
[Rules and Regulations]
[Pages 11121-11123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4386]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917


Kentucky Regulatory Program

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

ACTION: Final rule.

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SUMMARY: This final rule removes a suspension notation from our 
regulations pertaining to the Kentucky regulatory program (the 
``Kentucky program''). The suspension prohibited the issuance of new 
financial guarantees by the Kentucky Bond Pool because of insufficient 
funds that had resulted from the transfer of funds out of the bond 
pool. Kentucky has reimbursed its bond pool and the suspension notation 
concerning that issue is being removed because it is no longer 
necessary.

EFFECTIVE DATE: March 8, 2005.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone: (859) 
260-8400. Telefax number: (859) 260-8410.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Submission Information
III. OSM's Findings
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 State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C.

[[Page 11122]]

1253(a)(1) and (7). On the basis of these criteria, the Secretary of 
the Interior conditionally approved the Kentucky program on May 18, 
1982. You can find background information on the Kentucky program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval in the May 18, 1982, Federal Register (47 FR 
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. Submission Information

    In a Federal Register notice dated May 13, 2004, we published a 
final rule indicating that we were not approving an amendment to the 
Kentucky program (69 FR 26500). The amendment transferred $3,840,000 
from the Kentucky Bond Pool Fund to the General Fund for the 2002-2003 
and 2003-2004 fiscal years. In the same notice, we also suspended 
Kentucky's use of the Bond Pool Fund to provide new financial 
guarantees. Our decision was codified at 30 CFR 917.17(c). By letter 
dated July 12, 2004, Kentucky notified us that $3,840,000 would be 
transferred from the General Fund into the Bond Pool Fund by authority 
of the Governor (Administrative Record No. KY-1629). By letter dated 
July 15, 2004, we noted that Executive Order 2004-753 effected the 
transfer of the $3,840,000 from the General Fund into the Bond Pool 
Fund and notified Kentucky that the transfer satisfies our concerns and 
that we were therefore terminating our suspension of the use of the 
Bond Pool Fund (Administrative Record No. KY-1632).

III. OSM's Findings

    As a result of the transfer of $3,840,000 into the Bond Pool Fund 
as specified in the letter dated July 12, 2004, and our subsequent 
termination of the suspension on July 15, 2004, the Director has 
determined that the suspension notation at 30 CFR 917.17(c) is no 
longer required, and should be removed. Accordingly, we are removing 
the suspension notation.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. The removal of the 
suspension notation at 30 CFR 917.17(c) merely acknowledges the 
transfer of funds into the Kentucky Bond Pool by the State.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

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 our decision on a State regulatory 
program and does not involve a Federal regulation involving Indian 
lands.

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.

Administrative Procedure Act

    This final rule has been issued without prior notice or opportunity 
for public comment. The Administrative Procedure Act (APA) (5 U.S.C. 
553) provides an exception to the notice and comment procedures when an 
agency finds there is good cause for dispensing with such procedures on 
the basis that they are unnecessary. We have determined that under 5 
U.S.C. 553(b)(3)(B), good cause exists for dispensing with the notice 
of proposed rulemaking and public comment procedures. For the reasons 
previously stated, the rule removes a suspension status notation from 
the Code of Federal Regulations at 30 CFR 917.17(c). This action does 
not constitute our decision to terminate the suspension of Kentucky's 
use of the Bond Pool Fund. That decision was made on July 15, 2004. 
Rather, the removal of the suspension notation pertaining to the use of 
the Bond Pool Fund merely acknowledges the return of the $3,840,000 
previously transferred out of the Bond Pool Fund, and our July 15, 
2004, decision to terminate our suspension. When we removed the 
suspension, we reactivated that portion of the State regulatory program 
previously approved. For these same reasons, we believe there is good 
cause under 5 U.S.C. 553(d)(3) of the APA to have the rule become 
effective on a date that is less than 30 days after the date of 
publication in the Federal Register.

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

[[Page 11123]]

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 removal of the suspension notation from 30 CFR 917.17(c) 
acknowledges the transfer of funds by Kentucky into the Bond Pool Fund. 
The July 15, 2004, removal of the suspension should increase bonding 
options for coal operators and facilitate the approval of surface coal 
mining operations within the State.

Small Business Regulatory Enforcement Fairness Act

    For the reasons previously discussed, 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.

Unfunded Mandates

    For the reasons previously discussed, 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.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 11, 2005.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

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

PART 917--KENTUCKY

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

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


Sec.  917.17  [Amended]

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2. In Sec.  917.17, paragraph (c) is amended by removing the second 
sentence.

[FR Doc. 05-4386 Filed 3-7-05; 8:45 am]
BILLING CODE 4310-05-P