[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Proposed Rules]
[Pages 58053-58056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23063]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[SATS No. KY-253-FOR; Docket ID: OSM-2009-0014]


Kentucky Regulatory Program

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

ACTION: Proposed rule; Removal of Required Amendments; public comment 
period and opportunity for public hearing.

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[[Page 58054]]

SUMMARY: We are announcing our intent to remove two required amendments 
to the Kentucky regulatory program (hereinafter, the ``Kentucky 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). As a result of OSM's review of the Kentucky program 
concerning its regulations and procedures relating to Ownership and 
Control, and Transfer, Assignment or Sale of Permit Rights, OSM has 
determined that two previously required amendments can be removed. 
Kentucky's program with regard to Ownership and Control, and Transfer, 
Assignment, or Sale of Permit Rights, is now consistent with the 
corresponding Federal regulations and SMCRA.
    This document gives the times and locations that the Kentucky 
program is 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 4:00 p.m., local time 
October 19, 2012. If requested, we will hold a public hearing on 
October 15, 2012. We will accept requests to speak until 4:00 p.m., 
local time on October 4, 2012.

ADDRESSES: You may submit comments, identified by ``KY-253-FOR; Docket 
Number OSM-2009-0014'' by either of the following two methods:
    Federal eRulemaking Portal: www.regulations.gov. The proposed rule 
has been assigned Docket ID: OSM-2009-0014. If you would like to submit 
comments through the Federal eRulemaking Portal, go to 
www.regulations.gov and follow the instructions.
    Mail/Hand Delivery/Courier: Joseph L. Blackburn, Field Office 
Director, Lexington Field Office, Office of Surface Mining Reclamation 
and Enforcement, 2675 Regency Road, Lexington, Kentucky 40503.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section 
in this document.
    Docket: In addition to obtaining copies of documents at 
www.regulations.gov, you may also obtain information at the address 
listed below during normal business hours, Monday through Friday, 
excluding holidays.
    Joseph L. Blackburn, Field Office Director, Lexington Field Office, 
Office of Surface Mining Reclamation and Enforcement, 2675 Regency 
Road, Lexington, Kentucky 40503, Telephone: (859) 260-3902; Email: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Joseph L. Blackburn, Telephone: (859) 
260-3900. Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Background on the Ownership and Control Rule
III. Description of OSM's Proposed Action
IV. Public Comment Procedures
V. 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 this Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to this 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. Background on the Ownership and Control Rule

    OSM first promulgated final rules to address Ownership and Control 
(O&C) over 20 years ago. Since then, OSM has published a series of 
changes to O&C and related rules, some in response to Federal Court 
decisions, culminating in our latest rulemaking published on December 
3, 2007, which included changes to our Transfer, Assignment, or Sale 
(TAS) of Permit rights rules (72 FR 68000).
    The Lexington Field Office conducted an evaluation of the Kentucky 
regulatory program pursuant to 30 CFR 732.17 in order to determine if 
any changes were required. The Lexington Field Office reviewed the 
Kentucky program against all revisions to the Federal regulations 
through July 1, 2008, using a standard of ``no less effective than the 
Federal regulations in meeting the requirements of the Act'' (65 FR 
79658). As a part of the evaluation, the Lexington Field Office of OSM 
conducted several meetings with the Kentucky Department for Natural 
Resources (KDNR). As a part of its review, OSM considered whether the 
program is currently being implemented in accordance with the current 
Federal regulations. Because OSM had issued required amendments to KDNR 
prior to the current final rulemaking, OSM revisited the need for those 
required amendments in light of the current status of the Federal 
regulations. As a result of that review, OSM is proposing to remove the 
previously required amendments as discussed below.

III. Description of OSM's Proposed Action

    OSM is proposing removal of a required amendment found at 30 CFR 
917.16 (e) regarding the Kentucky ownership and control regulations. 
Previously, OSM reviewed a program amendment submitted by Kentucky, 
which among other things, proposed to add a regulation which prohibited 
``* * * the issuance of a permit if the applicant, operator or anyone 
who owns or controls the applicant, controls or has controlled any 
surface coal mining and reclamation operation with a demonstrated 
pattern of willful violations of Kentucky Revised Statute (KRS) chapter 
350 and regulations adopted pursuant thereto * * *'' In a Federal 
Register notice dated September 23, 1991 (56 FR 47907), OSM found the 
proposed 405 KAR 8:010 Section 13 (4)(c) to be less effective than its 
Federal counterpart at 30 CFR 773.15 (b)(3) to the extent the proposal 
does not include violations of Federal regulatory programs and other 
State regulatory programs. OSM disapproved the proposed revisions and 
required Kentucky to further amend its program to correct the 
deficiencies identified. OSM included a required program amendment in 
its decision as follows:

30 CFR 917.16(e) By March 23, 1992, Kentucky shall amend its rules 
at 405 KAR 8:010 section 13(4)(c) to include violations of Federal 
regulatory programs and other State regulatory programs, not just 
violations of KRS chapter 350 and regulations adopted thereto.

As a result of the recent review of the current O&C program in 
Kentucky, we have determined that KDNR interprets 405 KAR 8:010 Section 
13 (4) in a manner that is no less stringent than SMCRA and no less 
effective than the corresponding Federal regulations. In our previous 
assessment, leading to the

[[Page 58055]]

required amendment, OSM considered only one regulation, which on its 
face implied that KDNR might not consider all violations. However, our 
recent review determined that KDNR has been interpreting these 
standards consistent with the Federal regulations. When reviewing the 
Kentucky program in total, we tentatively determined that the program 
is being interpreted such that no permit will be issued to an applicant 
who owns or controls operations with a demonstrated pattern of willful 
violations of the Kentucky program, SMCRA, or any other surface coal 
mining regulatory program, that are of such nature and duration with 
such resulting irreparable damage to the environment as to indicate an 
intent not to comply with the Kentucky program, SMCRA, or with any 
other surface coal mining regulatory program. For this reason, we are 
proposing the removal of the required amendment at 30 CFR 916.16(e).
    In addition, OSM is proposing removal of a required amendment found 
at 30 CFR 917.16 (h) regarding the Kentucky operator change revision 
regulations. Previously OSM reviewed a program amendment submitted by 
Kentucky, which among other things, proposed to add a regulation which 
``* * * established a new category of permit revision for operator 
changes that do not constitute a transfer, assignment or sale of permit 
rights.''
    In a Federal Register dated January 12, 1993 (58 FR 3833), OSM 
determined that the proposed change to 405 KAR 8:010 Section 20(6)(h) 
did not include notification to OSM, nor did the proposed rule require 
that the regulatory authority be notified when the approved change was 
consummated. OSM disapproved the proposed revision and required 
Kentucky to further amend its program to correct the deficiencies 
identified. OSM included a required program amendment in its decision 
as follows:

30 CFR 917.16(h) By June 14, 1993, Kentucky shall amend its rules at 
405 KAR 8:010 Section 20(6)(h) by including OSM as one of the 
parties to be notified of the cabinet's decision to approve or deny 
the application for an operator change and to require that the 
regulatory authority be notified when the approved change is 
consummated.

    OSM has historically interpreted the Federal rules as meaning that 
changes in the ``operator'' of a mine, as that term is defined at 30 
CFR 701.5, must be processed as a TAS of permit regulations. In the 
December 3, 2007, Federal regulation (72 FR 68000) OSM made changes to 
TAS, including defining TAS as limited to ``* * * a change of a 
permittee * * *'' (30 CFR 701.5). Therefore, the Federal regulations no 
longer consider a change in the ``operator'' of a mine to fall under 
the definition of TAS. Kentucky continues to process a change in mine 
operator in a manner similar to the process developed for the TAS 
applications. In addition, KDNR will continue entering all data 
concerning a revision of the mine operator in both Applicant/Violator 
System (AVS) and Kentucky Surface Mining Information System (KYSMIS).

IV. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the Kentucky program now satisfies the applicable 
program approval criteria of 30 CFR 732.15. If we remove the required 
amendments, the Kentucky program will be approved as it is currently 
being implemented.

Written or Electronic Comments

    If you submit written comments, they should be specific, confined 
to issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent Tribal or 
Federal laws or regulations, technical literature, or other relevant 
publications. We cannot ensure that comments received after the close 
of the comment period (see DATES) or at locations other than those 
listed above (see ADDRESSES) will be included in the docket for this 
rulemaking and considered.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, be aware that 
your entire comment--including your personal identifying information--
may be made publicly available at any time. While you may ask us in 
your comment to withhold your personal identifying information from 
public review, we cannot guarantee that we will be able to do so. We 
will not consider anonymous comments.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., local time on 
October 4, 2012. If you are disabled and need reasonable 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, that if possible, 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 there is only limited interest in participating in a public 
hearing, we may hold a public meeting rather than a public hearing. If 
you wish to meet with us to discuss the amendment, please request a 
meeting by contacting the person listed under FOR FURTHER INFORMATION 
CONTACT. All such meetings are open to the public and, if possible, we 
will post notices of meetings at the locations listed under ADDRESSES. 
We will make a written summary of each meeting a part of the 
administrative record.

V. Procedural Determinations

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.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSM for review, our 
regulations at 30 CFR 732.17(h) require us to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment. We 
conclude our review of the proposed amendment after the close of the 
public comment period and determine whether the amendment should be 
approved, approved in part, or not approved. At that time, we will also 
make the determinations and certifications required by the various laws 
and executive orders governing the

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rulemaking process and include them in the final rule.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 9, 2012.
Thomas D. Shope,
 Regional Director, Appalachian Region.
[FR Doc. 2012-23063 Filed 9-18-12; 8:45 am]
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