[Federal Register Volume 89, Number 153 (Thursday, August 8, 2024)]
[Rules and Regulations]
[Pages 64787-64790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17333]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[SATS No. KY-264-FOR; Docket ID: OSM-2022-0008; S1D1S SS08011000 
SX064A000 245S180110; S2D2S SS08011000 SX064A000 24XS501520]


Kentucky Regulatory Program

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving an amendment to the Kentucky regulatory program 
(hereinafter, the Kentucky program), under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). We are approving 
Kentucky's revision to its regulations regarding the qualifications of 
members of the Kentucky Reclamation Guaranty Fund Commission.

DATES: The effective date is September 9, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Castle, Field Office 
Director, Telephone 859-260-3900, Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews

I. Background on the Kentucky Program

    Subject to OSMRE's oversight, 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, 
State laws and regulations that govern surface coal mining and 
reclamation operations in accordance with the Act and consistent with 
the Federal regulations. 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, effective 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 the Kentucky program 
and program amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 
917.16, and 917.17.
    On July 18, 1986, we approved the creation of Kentucky's bond pool 
commission, which from 1986 to 2013 oversaw Kentucky's initial 
alternative bonding system known as the voluntary bond pool fund. 51 FR 
26002 (July 18, 1986). In May 2012, we concluded that the State 
regulatory authority was not effectively implementing, administering, 
enforcing, and maintaining its reclamation bond program, and we 
initiated the regulatory process to correct the identified regulatory 
program issues. See 30 CFR part 733. In response to our part 733 
letter, Kentucky submitted various amendments. One amendment, which we 
approved in large part in 2018, repealed the voluntary bond pool fund 
and replaced it with the Kentucky Reclamation Guaranty Fund. See 83 FR 
3948 (Jan. 29, 2018). Those amendments also replaced the bond pool fund 
commission with the Kentucky Reclamation Guaranty Fund Commission 
(KRGFC or commission). Id. The purpose of the KRGFC is to review 
membership applications and ratings; notify members of tonnage fees 
required; revoke or reinstate membership; employ a certified public 
accountant to audit the bond pool fund; authorize necessary 
expenditures from the fund; and report the financial status of the fund 
to the governor annually. The KRGFC provisions also specified the 
composition of the KRGFC membership and qualifications that those 
members must meet.

II. Submission of the Amendment

    By letter dated April 18, 2022 (Administrative Record No. KY-2008), 
Kentucky sent us an amendment to its program under SMCRA (30 U.S.C. 
1201 et seq.). This submission proposes to revise the qualifications 
for members appointed to the seven-member KRGFC. Currently, the 
governor appoints three members to the KRGFC that are representatives 
of the coal industry. The coal industry representatives are permittees 
that participate in the fund and are selected based on the amount of 
coal produced and subsequently sold annually. Three tiers were created, 
based on tons of coal sold, to represent a large, a medium, and a small 
operator. One member from each tier was to be selected. The revision 
would allow the governor to appoint a member from a lower tier when no 
permittee that participates in the fund meets the production level of 
an upper tier. Kentucky's submission also removes requirements that are 
no longer relevant to the operation of the KRGFC and makes minor 
revisions.
    We announced receipt of the proposed amendment in the May 23, 2023, 
Federal Register (88 FR 33016) (Administrative Record KY-2008). In the 
same document, we opened the public comment period and provided an 
opportunity for a public hearing or meeting on the adequacy of the 
amendment. We did not hold a public hearing or meeting as neither was 
requested. The public comment period ended on June 22, 2023. We 
received two comments from concerned individuals that are addressed 
below in the PUBLIC COMMENTS section.

III. OSMRE's Findings

    We made the following findings concerning the amendment under SMCRA 
and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment as described below. The full text of this 
program amendment is available at www.regulations.gov.
    We are approving the following changes to KRS 350.506:
    A. Section 1. Kentucky deleted the date by which the Governor was 
to appoint the first six appointed member of the commission, which was 
``July 1, 2013.''
    B. Section 1(a). Kentucky revised this provision to require that 
the three members of the commission who are representative of the coal 
industry must be permittees that participate in the fund and to 
reinforce that they are tiered to represent the size of the operator 
measured in tons of coal sold.
    C. Section 1(a)(3). Kentucky deleted subparagraph (b), which 
specified that if no operator from the largest tier is available to sit 
on the commission, a member shall be selected from the middle tier. 
Kentucky replaced subparagraph (b) with the following coda to 
subsection (a)(3): ``If no permittee that participates in the fund 
meets the qualifications stated in subparagraph 2 or in subparagraph 3 
of this paragraph, then a qualified permittee shall be selected in a 
lower tier.''
    D. Section 2(a). Kentucky deleted this provision, which dictated 
the term of years for the Governor's initial appointments to the 
commission and

[[Page 64788]]

renumbered subsequent paragraphs accordingly.
    E. Section 1(5). Kentucky revised this provision to delete the 
requirement that the commission meet monthly during the first year, 
leaving in place the requirement that it meet every three months 
thereafter.
    OSMRE Finding: As we noted in our initial approvals of both the 
voluntary bond pool commission and the KRGFC, no comparable Federal 
regulations exist addressing the creation or management of alternative 
bonding programs. Section 509(c) of SMCRA provides for alternative 
bonding systems stating that ``the Secretary may approve as part of a 
State or Federal program an alternative system that will achieve the 
objectives and purposes of the bonding program pursuant to this 
section.'' The Federal rules at 30 CFR 800.11(e) provide that OSMRE may 
approve an alternative bonding system if the system assures that the 
regulatory authority will have available sufficient money to complete 
the reclamation plan for any areas in default at any time and provides 
an economic incentive for the permittee to comply with all reclamation 
provisions. We find that the proposed changes, which affect minor 
aspects of commission make-up and governance, some of which are now 
obsolete, are not inconsistent with section 509(c) of SMCRA or with the 
Federal regulations at 30 CFR 800.11(e) and are hereby approved.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment and received two. The 
first was from a private citizen recommending the qualifications of the 
board members to consist of only scientists studying fossil fuel 
consumption and its effects. As we discussed above, should a State 
elect to establish an alternative bonding system, its means of 
implementing the alternative bonding system is at the State's 
discretion so long as it complies with the general requirements of 
section 509 of SMCRA and 30 CFR 800.11(e). Therefore, the specific 
qualifications of the KRGFC members are beyond the scope of this 
rulemaking.
    The second public comment was from the Kentucky Resources Council, 
Inc. (Council). The Council agrees that the proposed revisions to the 
commission membership qualifications are acceptable in efforts to 
support changing coal industry demographics. Further, the Council 
recommends that an annual review of the Kentucky Permanent Regulatory 
Program, which would include the assurance of adequate funding in the 
event of bond forfeiture or permittee bankruptcy, fall under OSMRE's 
oversight function. Oversight of Kentucky's bonding program has always 
been and will continue to be one of our responsibilities.

Federal Agency Comments

    On July 13, 2022, under 30 CFR 732.17(h)(11)(i) and section 503(b) 
of SMCRA, we requested comments on the amendment from various agencies 
with an actual or potential interest in the Kentucky program 
(Administrative Record KY-2008-1). The Natural Resources Conservation 
Service sent a ``no comment letter''; and we did not receive any 
comments from other agencies.

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.) None of the revisions that Kentucky proposed to 
make in this amendment pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment. However, on 
July 13, 2022, under 30 CFR 732.17(h)(11)(i), we requested comments 
from the EPA on the amendment (Administrative Record No. KY-2008-1). 
EPA did not respond to our request.

State Historical 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 July 13, 2022, we requested comments on the Kentucky 
amendments (Administrative Record No. KY-2008-1). We did not receive 
comments from the SHPO or ACHP.

V. OSMRE's Decision

    Based on the above findings, we are approving KY-264 submitted to 
us on April 18, 2022 (Administrative Record No. KY-2008). To implement 
this decision, we are amending the Federal regulations at 30 CFR part 
917 that codify decisions concerning the Kentucky program. In 
accordance with the Administrative Procedure Act (5 U.S.C. 533), this 
rule will take effect 30 days after the date of publication.

VI. Statutory and Executive Order Reviews

Executive Order 12630--Governmental Actions and Interference With 
Connotationally Protected Property Rights

    This rule would not effect a taking of private property or 
otherwise have taking implications that would result in private 
property being taken for government use without just compensation under 
the law. Therefore, a taking implication assessment is not required. 
This determination is based on an analysis of the Federal regulations 
that set minimum performance standards for alternative bonding systems.

Executive Orders 12866--Regulatory Planning and Review, 13563--
Improving Regulation and Regulatory Review, and 14094--Modernizing 
Regulatory Review

    Executive Order 12866, as amended by Executive Order 14094, 
provides that the Office of Information and Regulatory Affairs in the 
Office of Management and Budget (OMB) will review all significant 
rules. Pursuant to OMB guidance dated October 12, 1993 (OMB Memo M-94-
3), the approval of State program amendments are exempted from OMB 
review under Executive Order 12866, as amended by Executive Order 
14094. Executive Order 13563, which reaffirms and supplements Executive 
Order 12866, retains this exemption.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by section 3 of Executive Order 12988. The Department determined that 
this Federal Register document meets the criteria of section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive Order to the quality of this Federal Register document 
and to changes to the Federal regulations. The review under this 
Executive Order did not extend to the language of the State regulatory 
program amendment that Kentucky drafted.

[[Page 64789]]

Executive Order 13132--Federalism

    This rule has potential Federalism implications as defined under 
section 1(a) of Executive Order 13132. Executive Order 13132 directs 
agencies to ``grant the States the maximum administrative discretion 
possible'' with respect to Federal statutes and regulations 
administered by the States. Kentucky, through its approved regulatory 
program, implements and administers SMCRA and its implementing 
regulations at the state level. This rule approves an amendment to the 
Kentucky program submitted and drafted by the State, and thus is 
consistent with the direction to provide maximum administrative 
discretion to States.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175 and have determined that it has no substantial 
direct effects on the distribution of power and responsibilities 
between the Federal Government and Tribes. The basis for this 
determination is that our decision on the Kentucky program does not 
include Indian lands as defined by SMCRA or other Tribal lands and it 
does not affect the regulation of activities on Indian lands or other 
Tribal lands. Indian lands under SMCRA are regulated independently 
under the applicable approved Federal Indian program. The Department's 
consultation policy also acknowledges that our rules may have Tribal 
implications where the State proposing the amendment encompasses 
ancestral lands in areas with minable coal. We are currently working to 
identify and engage appropriate Tribal stakeholders to devise a 
constructive approach for consulting on these amendments.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking 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 
significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

National Environmental Policy Act

    Consistent with sections 501(a) and 72(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d), respectively) and the U.S. Department of the 
Interior Departmental Manual, part 516, section 13.5(A), State program 
amendments are not 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 include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.) is not required.

Regulatory Flexibility Act

    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 the Federal regulations that set minimum 
performance standards for alternative bonding systems 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 corresponding 
Federal regulations. The Federal regulations were also promulgated to 
provide flexibility to ensure the availability of surety bonding to 
small operators.

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 on an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the Federal regulations that set minimum 
performance standards for alternative bonding systems, which were 
determined not to impose an unfunded mandate. Therefore, a statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.

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

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 by adding a new entry to the table in 
paragraph (a) in chronological order by ``Date of final publication'' 
to read as follows:


Sec.  917.15  Approval of Kentucky regulatory program amendments

    (a) * * *

[[Page 64790]]



------------------------------------------------------------------------
 Original amendment submission       Date of final          Citation/
             date                     publication          description
------------------------------------------------------------------------
 
                              * * * * * * *
April 18, 2022................  August 8, 2024........  KRS 350.506
------------------------------------------------------------------------

* * * * *
[FR Doc. 2024-17333 Filed 8-7-24; 8:45 am]
BILLING CODE 4310-05-P