[Federal Register Volume 70, Number 84 (Tuesday, May 3, 2005)]
[Rules and Regulations]
[Pages 22795-22797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8731]


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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: Final rule; approval of amendment.

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SUMMARY: We are approving an amendment to the Kentucky 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.

DATES: Effective Date: May 3, 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 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

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Kentucky program on May 18, 1982. You can 
find background information on the Kentucky program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval in the May 18, 1982, Federal Register (47 FR 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 of the Proposed Amendment

    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). The required amendment resulted from 
OSM's decision on June 9, 1993, to not approve proposed changes to 405 
KAR (Kentucky Administrative Regulations) 16/18:200 Sections 1(7)(a), 
(7)(a)1 through 5, and 1(7)(d) that were submitted to OSM on June 28, 
1991 (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. In its submission letter, Kentucky stated, 
in part, that its administrative regulations at 405 KAR 16/18:200 
Sections 1(7)(a)1 through 5, and Sections 1(7)(b) and (d) ``provide 
general direction on common remedial practices that will not extend the 
bond liability period'' and ``While these regulations establish a basic 
level of remedial activity that may occur, they do not identify many of 
the husbandry practices that may be commonly used in this region.'' 
Kentucky included guidance documents from the University of Kentucky 
College of Agriculture Cooperative Extension Service that identify the 
common husbandry practices that Kentucky would allow, subject to the 
limitations in 405 KAR 16:200/18:200 Section 1(7)(a) and (d). Kentucky 
also submitted information regarding similar husbandry practices 
approved and used in Tennessee, Ohio and Virginia. Finally, Kentucky 
provided examples of common practices that would be encountered on 
lands in Kentucky and would not restart or extend the bond liability 
period. The examples pertained to the following land uses: hayland, 
pastureland, forestland, commercial forestry, fish and wildlife, 
commercial, industrial, residential or recreational. We note that some 
of these examples do not pertain to the husbandry practices listed in 
405 KAR 16/18:200 Section 1 (7)(a) and (d) so they are not considered 
in this amendment.
    We announced receipt of the proposed amendment in the September 14, 
2004, Federal Register (69 FR 55373), and in the same document invited 
public comment and provided an opportunity for a public hearing on the 
adequacy of the proposed amendment. The public comment period closed on 
October 14, 2004. We received one comment from the U.S. Fish and 
Wildlife Service.

III. OSM's Findings

    Following is the finding we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. The 
regulation at 405 KAR 16/18:200 Section 1(7)(a) allows quarter acres or 
less of discrete areas to be reseeded without restarting the 
responsibility period if the areas meet one of the five exemptions and 
the total of these areas is no more than three percent of the permit 
acreage. The Federal rules at 30 CFR part 816 and 817.116(c)(4) allow 
the performance of normal husbandry practices during the period of 
responsibility, without restarting that period, if the State and OSM 
approve such practices and such practices can be expected to continue 
as part of the postmining land use or if discontinuance of the practice 
after the liability period expires will not reduce the probability of 
permanent revegetation success. We find that the three percent overall 
size limitation will not reduce the probability of permanent 
revegetation success because the Federal rules at 30 CFR part 816 and 
817.116(a)(2) provide that ground cover,

[[Page 22796]]

production or stocking shall be considered equal to the approved 
success standard when they are not less than 90 percent of the success 
standard. Thus, the three percent limitation will still allow the area 
to meet the 90 percent success standard of part 816 and 817.116(a)(2). 
The size limitation of a specific area was addressed in our finding 
regarding Virginia's husbandry practices (59 FR 49195), where we said 
that the reseeding of large blocks of barren areas representing failed 
reclamation would be augmentative. The Federal rules at part 816 and 
817.116(c)(4) prohibit husbandry practices to be augmentative. 
Kentucky's limit of a quarter acre for discrete areas would not be 
considered large blocks of barren areas. Thus, Kentucky's 
administrative record information is sufficient to support these 
practices as normal husbandry. Accordingly, we find 405 KAR 16/18:200 
Section 1(7)(a) no less effective than the Federal rules.
    405 KAR 16/18:200 section 1(7)(d) states that irrigating, reliming, 
and refertilizing pastureland; reseeding cropland; and renovating 
pastureland by overseeding after Phase II bond release and after three 
years from the initial seeding shall be considered normal husbandry 
practices. These practices will not restart the liability period if the 
amount and frequency of these practices do not exceed normal 
agricultural practices on unmined land in the region. The Federal rules 
at 30 CFR part 816 and 817.116(c)(4) permit selective husbandry 
practices, excluding augmented seeding, fertilization, or irrigation, 
provided the regulatory authority obtains prior approval from OSM that 
the practices are normal husbandry practices, without extending the 
period of responsibility for revegetation success and bond liability. 
Kentucky has provided guidance documents it employs to identify common 
husbandry practices. The documents are published by the Kentucky 
College of Agriculture Cooperative Extension Service and are: 
Renovating Hay and Pasture Fields, Growing Red Clover in Kentucky and 
Establishing Forage Crops. The administrative record information 
submitted by Kentucky demonstrates that its practices are the usual or 
expected state, form, amount, or degree of management performed 
habitually to prevent exploitation, destruction, or neglect of the 
resource and maintain a prescribed level of use or productivity of 
similar unmined lands. We find that these documents establish an 
adequate administrative record to support the normal husbandry 
practices listed in section 1(7)(d) and that 405 KAR 16/18:200 Section 
1(7)(d) are no less effective than the Federal rules and can be 
approved.
    It should be noted that 405 KAR 16/18:200 section 1(7)(b) was 
previously approved and therefore not part of this amendment (see 63 FR 
41423, August 4, 1998).

IV. Summary and Disposition of Comments

Public Comments

    We solicited public comments on September 14, 2004, and provided an 
opportunity for a public hearing on the amendment. Because no one 
requested an opportunity to speak, a hearing was not held.

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), on September 30, 2004, we 
solicited comments on the proposed amendment submitted on May 14, 2004, 
from various Federal agencies with an actual or potential interest in 
the Kentucky program (administrative record No. KY-1634). We received 
one response from the U.S. Fish and Wildlife Service, who concurred 
without comment.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated 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.). 
Because the provisions of this amendment do not relate to air or water 
quality standards, we did not request EPA's concurrence.

V. OSM's Decision

    Based on the above finding, we are approving 405 KAR 16:200 Section 
1(7)(a) and 1(7)(d) and 405 KAR 18:200 Section 1(7)(a) and 1(7)(d) 
which were previously not approved. We are also removing the required 
amendment at 30 CFR 917.16(i) because Kentucky has submitted the 
administrative record information necessary to demonstrate that its 
proposed practices are normal husbandry practices within Kentucky as 
discussed in Section III above.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 917 which codify decisions concerning the Kentucky 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that Kentucky's program demonstrate that it has the capability 
of carrying out the provisions of the Act and meeting its purposes. 
Making this regulation effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

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

Executive Order 13132--Federalism

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

[[Page 22797]]

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.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in 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: March 17, 2005.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

PART 917--KENTUCKY

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

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


0
2. Section 917.15 is amended in the table by adding a new entry in 
chronological order by the ``Date of Final Publication'' to read as 
follows:


Sec.  917.15  Approval of Kentucky regulatory program amendments.

* * * * *

------------------------------------------------------------------------
     Original amendment           Date of final
       submission date             publication      Citation/description
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                              * * * * * * *
June 28, 1991 with record     May 3, 2005.........  405 KAR 16:200
 material submitted July 29,                         Section 1(7)(a) and
 2004.                                               (7)(d) and 405 KAR
                                                     18:200 Section 1
                                                     (7)(a) and (7)(d).
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Sec.  917.16  Required regulatory program amendments.

0
3. Section 917.16 is amended by removing and reserving paragraph (i).

[FR Doc. 05-8731 Filed 5-2-05; 8:45 am]
BILLING CODE 4310-05-P