[Federal Register Volume 65, Number 91 (Wednesday, May 10, 2000)]
[Rules and Regulations]
[Pages 29949-29953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11660]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-218-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: OSM is approving, with one exception, a proposed amendment to 
the Kentucky regulatory program (Kentucky program) under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). Kentucky is 
proposing revisions to the Kentucky Revised Statutes (KRS) pertaining 
to bonding and permits. The amendment is intended to revise the 
Kentucky program to be consistent with the corresponding Federal 
regulations.

EFFECTIVE DATE: May 10, 2000.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Field Office 
Director, Lexington Field Office, 2675 Regency Road, Lexington, 
Kentucky 40503. Telephone: (606) 233-2894. Email: <a href="/cdn-cgi/l/email-protection#4c2e27233a2d2f252f0c233f213e29622b233a"><span class="__cf_email__" data-cfemail="4c2e27233a2d2f252f0c233f213e29622b233a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Kentucky Program

    On May 18, 1982, the Secretary of the Interior conditionally 
approved the Kentucky program. You can find background information on 
the Kentucky program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the May 18, 
1982 Federal Register (47 FR 21404). You can find subsequent actions 
concerning conditions of approval and program amendments at 30 CFR 
917.11, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

    By letter dated April 23, 1998 (Administrative Record No. KY-1425), 
Kentucky submitted a proposed amendment to its program. House Bills 
(HB) 354, 498, and 593 (effective July 15, 1998) revise KRS sections 
350.990(11), 350.131(2), 350.139(1), 350.990(1), and 350.060(16).
    We announced receipt of the proposed amendment in the May 20, 1998, 
Federal Register (63 FR 27698), invited public comment, and provided an 
opportunity for a public hearing on the adequacy of the proposed 
amendment. The public comment period closed on June 19, 1998.

III. Director's Findings

    Following, according to SMCRA and the Federal regulations at 30 CFR 
732.15 and 732.17, are our findings concerning the proposed amendment.
    Any revisions that we do not specifically discuss below concern 
nonsubstantive wording changes or revised cross-references and 
paragraph notations to reflect organizational changes that result from 
this amendment.
    Reorganization--HB 354 confirms Executive Order 97-714 (June 11, 
1997) which changed the name of the Division of Abandoned Lands to the 
Division of Abandoned Mine Lands. At KRS 350.990(11), Kentucky proposes 
to correct the name in this section. While there are no corresponding 
Federal provisions, we are approving the revision because it does not 
alter the authority or responsibility of the Division of Abandoned Mine 
Lands, and is not, therefore, inconsistent with the requirements of 
SMCRA and the Federal regulations.
    Forfeited Bonds--HB 498 completes the bonding reforms recommended 
in the 1993 joint study of the adequacy of reclamation bonds in 
Kentucky. At KRS 350.131(2), Kentucky proposes to return any unused 
bond funds, less any accrued interest, to the party from whom they were 
collected when the forfeited amount is more than the amount needed for 
reclamation.
    The Federal regulations at 30 CFR 800.50(d)(2) provide that, where 
the amount of the performance bond forfeited exceeds the cost of 
reclamation, ``the unused funds shall be returned * * * to the party 
from whom they were collected.'' However, both SMCRA and the Federal 
regulations are silent as to the disposition of any interest proceeds 
generated by the bond while it is in the possession of the regulatory 
authority. Therefore, while Kentucky's proposed requirement is not 
specifically authorized by SMCRA, it is nonetheless well within the 
discretion provided to the states by section 505 of SMCRA to propose 
more stringent regulation of surface coal mining and reclamation 
operations than do the provisions of SMCRA and its implementing 
regulations. Therefore, the Director finds the Kentucky proposal to be 
not inconsistent with the requirements of SMCRA or the Federal rules at 
30 CFR part 800.
    At KRS 350.139(1), Kentucky proposes to establish a bond forfeiture 
supplemental fund. All funds from the forfeiture of bonds will be 
placed in an interest-bearing account. The interest will become a 
supplemental fund and may be used to supplement forfeited bonds that 
are inadequate to complete the reclamation plan. The interest may be 
expended on lands other than those for which the bond was given. No 
more than 25 percent of the supplemental fund may be expended on any 
single site, unless a larger expenditure is necessary to abate an 
imminent danger to public health or safety.
    At KRS 350.990(1), Kentucky proposes to establish a potential 
second source of money for the supplemental fund. The first $800,000 of 
the civil penalties Kentucky collects each year for coal mining 
violations goes to the State Treasury's General Fund. Any proceeds in 
excess of the first $800,000, collected in any fiscal year, go to the 
Kentucky Bond Pool Fund. Kentucky proposes to direct one-half of the 
excess that currently goes to the Bond Pool Fund to the new bond 
forfeiture supplemental fund, but only when the balance in the Bond 
Pool Fund is above the maximum of the operating range necessary to 
ensure its solvency. Currently, the maximum amount of money necessary 
to ensure the solvency of the Bond Pool Fund is $16 million. 
Accordingly, the amendment proposes no diversion of excess penalty 
income from the Bond Pool Fund to the bond forfeiture supplemental fund 
until the Bond Pool Fund reaches $16 million, or a larger amount 
established by the most recent actuarial study. The excess money 
collected will be deposited 50 percent to the Bond Pool Fund and 50 
percent to the supplemental fund. If the Bond Pool Fund falls below $16 
million (or a higher amount established by the actuarial study), all 
excess moneys will be deposited in the Bond Pool Fund until it reaches 
$16 million (or a higher amount).

[[Page 29950]]

    In its submittal letter dated April 23, 1998 (Administrative Record 
No. KY-1425), Kentucky clarified that the interest generated becomes a 
supplemental fund that can be used to reclaim lands where a forfeited 
bond is insufficient to complete necessary reclamation. Because no 
moneys may be diverted away from the Bond Pool Fund except for proceeds 
in excess of the amount necessary to guarantee its solvency, Kentucky 
has stated that any such transfer of moneys into the supplemental fund 
will not endanger the solvency of the Bond Pool Fund.
    We hereby approve the amendments to KRS 350.139(1) and 350.990(1), 
contained in House Bill 498, to the extent that the supplemental fund 
will be used as a supplement to the conventional, site specific 
performance bonds that must be furnished by permittees. The approval of 
these amendments in no way compromises the requirement that each such 
site specific performance bond must initially be determined to be 
sufficient in amount to assure completion of the reclamation plan and 
the satisfaction of all permit and Kentucky program requirements. 
Moreover, our approval of these amendments does not authorize Kentucky 
to use the supplemental fund as another alternative bonding program 
pursuant to section 509(c) of SMCRA. Rather, the supplemental fund may 
only be used for those sites for which the site specific performance 
bond, although initially determined to be sufficient to assure 
completion of reclamation, nevertheless is later found to be 
insufficient.
    Permit Renewal--HB 593 revises KRS 350.060(16), pertaining to the 
renewal of expired permits. If a permit has expired or a permit renewal 
application has not been timely filed and the operator or permittee 
wants to continue the surface coal mining operation, Kentucky will 
issue a notice of noncompliance (NOV). The NOV will be considered 
complied with, and the permit may be renewed, if Kentucky receives a 
permit renewal application within 30 days of the receipt of the NOV. 
Upon submittal of a permit renewal application, the operator or 
permittee will be deemed to have timely filed the application and can 
continue, under the terms of the expired permit, the mining operation 
pending issuance of the permit renewal. Failure to comply with the 
remedial measures of the NOV will result in the cessation of the 
operation.
    Section 506(a) of SMCRA precludes surface coal mining operations 
without a valid permit. Section 506(d)(3) requires that permit renewal 
applications be made 120 days prior to the permit expiration date.
    We are approving the provisions at KRS 350.060(16) to the extent 
that they pertain to permit renewal applications that have not been 
timely filed, for permits that have not yet expired. Section 506(d)(3) 
of SMCRA does not specify that a cessation order must be issued if a 
permit renewal application is not filed timely. Therefore, while it has 
no Federal counterpart, this proposed provision is not inconsistent 
with SMCRA or the Federal regulations, to the extent that it requires a 
notice of noncompliance, which is the Kentucky equivalent of a Federal 
notice of violation (NOV), to be issued to a permittee who fails to 
file a timely application for a renewal. However, we are not approving 
Kentucky's proposal to issue a notice of noncompliance, instead of an 
Imminent Harm Cessation Order (IHCO) or its Kentucky equivalent, to a 
person who has not yet filed a renewal application when his permit 
expires, and who continues to mine on the expired permit. In such a 
case, an IHCO must be issued, in accordance with 30 CFR 843.11(a)(2), 
since surface coal mining operations conducted without a valid surface 
coal mining permit constitute a condition or practice which causes or 
can reasonably be expected to cause significant, imminent environmental 
harm to land, air or water resources. Simply put, where a permittee has 
not yet filed a renewal application at the time his permit expires, it 
must cease mining operations, and begin or continue all necessary 
reclamation activities, upon permit expiration. Because it would allow 
a person to continue mining in this situation, this portion of HB 593 
is less stringent than Section 506 of SMCRA and less effective than the 
Federal regulations at 30 CFR 843.11. Specifically, we are not 
approving the phrase ``if a permit has expired or,'' contained in KRS 
350.060(16). OSM will announce its intention to set aside this portion 
of HB 593 in a future Federal Register notice.
    In addition, we find that the amendment is less stringent than 
section 506 of SMCRA and less effective than the Federal regulations at 
30 CFR 843.11 insofar as it allows an operator to continue mining on an 
expired permit after it has filed the permit renewal application within 
30 days of the receipt of the notice of noncompliance, regardless of 
whether the application is filed before or after permit expiration. 
Federal law and regulations prohibit mining without a permit, and 
require that any such mining be immediately ceased. Therefore, we are 
also disapproving the following portion of KRS 350.060(16):

    Upon the submittal of a permit renewal application, the operator 
or permittee shall be deemed to have timely filed the permit renewal 
application and shall be entitled to continue, under the terms of 
the expired permit, the surface coal mining operation, pending the 
issuance of the permit renewal.

    OSM will announce its intention to set aside this portion of HB 593 
in a future Federal Register notice.
    We are also requiring Kentucky to amend its program to make it 
clear that a person may not continue to mine on an expired permit, 
except where the permittee has filed a timely and complete application 
for renewal (i.e., the application is filed at least 120 days before 
permit expiration) and the regulatory authority has not yet approved 
the renewal application at the time of permit expiration. Kentucky must 
also amend its program to require the issuance of an IHCO to any person 
mining on an expired permit, except as described in the preceding 
sentence.

IV. Summary and Disposition of Comments

Public Comments

    We solicited public comments and provided an opportunity for a 
public hearing on the proposed amendment submitted on April 23, 1998. 
Because no one requested an opportunity to speak at a public hearing, 
none was held.
    Two members of the public submitted comments. One commenter 
supported the amendment in its entirety. The second commenter supported 
the provisions of HB 354 and 498 but requested clarification that the 
supplemental bond fund will function as a supplemental source of money 
and not a SMCRA section 509(c) alternative bonding program. As 
discussed in section III above, Kentucky clarified that the interest 
generated becomes a supplemental fund that can be used to reclaim lands 
where a forfeited bond is insufficient to complete necessary 
reclamation. The approval of these amendments in no way compromises the 
requirement that each such site specific performance bond must 
initially be determined to be sufficient in amount to assure completion 
of the reclamation plan and the satisfaction of all permit and Kentucky 
program requirements. Moreover, our approval of these amendments does 
not authorize Kentucky to use the supplemental fund as another 
alternative bonding program pursuant to section 509(c) of SMCRA. 
Rather, the supplemental fund may only be used for those sites for 
which the site specific performance bond, although

[[Page 29951]]

initially determined to be sufficient to assure completion of 
reclamation, nevertheless is later found to be insufficient.
    The second commenter opposes the provisions of HB 593, on several 
grounds. Each comment is summarized below, followed by our response.
    First, the commenter contends that the bill violates the plain 
language of Section 506(d)(3) of SMCRA, which requires that 
``[a]pplication for permit renewal shall be made at least one hundred 
and twenty days prior to the expiration of the valid permit.'' 
(Emphasis added) ``Shall'', according to the commenter, ``is the 
language of command, and is not to be read to allow filing of a permit 
renewal after the 120 day time frame, since the statute clearly demands 
``at least'' 120 days.''
    We agree that the word ``shall'' is commonly used to denote a 
mandatory duty. As such, a fair reading of Section 506(d)(3) of SMCRA 
leads to the conclusion that permittees are under a compulsion to 
submit permit renewal applications at least 120 days prior to permit 
expiration. Failure to file, therefore, could bring some adverse 
consequence to bear upon the permittee. Section 506(d)(3) does not, 
however, state that the consequence of failure to comply with the 120 
day deadline must be that the renewal cannot be granted under any 
circumstance, such as after the permittee submits an untimely 
application. Therefore, we believe that Kentucky may appropriately 
issue a notice of noncompliance, which is the State's counterpart to a 
Federal NOV, for failure to file a renewal application in a timely 
fashion. If the permittee then submits the renewal application, 
Kentucky may properly rule on it, employing the permit renewal criteria 
contained in its approved program.
    The commenter also contends that:

    Approval of the state program amendment would be contrary to a 
long-standing interpretation of the Federal Act by the Secretary as 
prohibiting any reduction in the timetable for filing renewal 
applications. OSMRE has acknowledged this time frame to be binding 
on the agency, rejecting a request that the application filing 
deadline of 120 days be reduced to 60 days ``because the 120-days 
are required by Section 506(d) of the Act.'' 44 FR 15016 (March 13, 
1979). Thus the final regulation retained the 120 day requirement. 
30 CFR part 771.21(b)(2), recodified at 30 CFR 774.15(b).
    Clearly, if reduction of the 120-day advance filing requirement 
to 60-days advance filing is inconsistent with Section 506(d), 
elimination of any advance filing and allowing post-expiration 
filings to relate back to the expired permit date is all the more 
inconsistent with the federal law.

    We disagree, because the 120 day advance filing requirement is not 
being altered or compromised by the Kentucky amendment. Failure to 
comply with this requirement can constitute a violation of the Kentucky 
program, thereby resulting in issuance of a notice of noncompliance, 
along with the possible imposition of civil penalties. (Presumably, 
Kentucky could elect not to issue a notice of noncompliance for failure 
to file a timely renewal application, where the permittee has stated 
his intention to discontinue mining, and continue with reclamation 
activities only, upon expiration of the permit. Of course, Kentucky 
would be required to issue a cessation order to such a person, if the 
person continued to mine on the expired permit.)
    Next, the commenter argues that the amendment violates Section 
506(a) of SMCRA, which states that ``no person shall engage in or carry 
out on lands within a State any surface coal mining operations unless 
such person has first obtained a permit * * *.'' The commenter contends 
that this amendment violates Section 506(a) because it:

    Would allow continued operations after the expiration of a valid 
permit, merely upon the filing of a renewal application. Thus, an 
individual could file a renewal application and continue to mine and 
remove coal, even where (i) the person might not be eligible for 
approval of a renewal application because the criteria for renewal 
are not met; (ii) the person does not follow through with the 
permitting.
    Section 506(a) demands that a permit be issued before surface 
coal mining operations occur. 30 CFR 773.11(a) likewise requires 
that a permit first be obtained, except where only reclamation 
activities remain to be accomplished on a site with a permit that 
has expired, in which case no renewal is necessary.
    To allow mining under an expired permit after the date of 
expiration of the permit violates Section 506(a) and 30 CFR 
773.11(a), just as allowing the filing of a permit renewal 
application after the 120-day advance deadline or after the permit 
expiration, violates Section 506(d)(3).

    As noted in our response above, we agree with the commenter that 
the untimely filing of a renewal application can constitute a violation 
of SMCRA Section 506(d)(3), but we believe Kentucky has sufficiently 
acknowledged this fact in its amendment, because it requires the 
issuance of a notice of noncompliance in such an instance, assuming the 
permittee wishes to continue mining after expiration of the current 
permit. We do not agree, however, that allowing the filing of a late 
renewal application violates Section 506(d)(3). Instead, we believe 
this provision is sufficiently flexible to allow consideration of 
untimely applications, so long as the permit renewal procedures, which 
include public participation, are properly followed.
    We also agree that the allowance of continued mining operations 
after the permit has expired presents a different question. Generally, 
the Federal regulations state that mining without a valid surface coal 
mining permit constitutes a ``condition or practice which causes or can 
reasonably be expected to cause significant imminent environmental harm 
* * *'' for which the Regulatory Authority must issue an Imminent Harm 
Cessation Order (IHCO). As noted in Section III., above, we are 
therefore disapproving the Kentucky amendment to the extent that it 
requires the issuance of a notice of noncompliance, rather than an 
IHCO, to any person mining on an expired permit, where that person has 
not submitted an application for renewal. We are also disapproving that 
portion of the amendment that would allow an operator to continue 
mining under an expired permit after filing a permit renewal 
application within 30 days of issuance of the notice of noncompliance.
    The commenter also argues that the amendment violates the 
requirements for permit renewal, and allows continued operations in 
derogation of public participation and advance agency review, insofar 
as it allows continued coal removal under an expired permit so long as 
the renewal application has been filed. The commenter states that 
SMCRA's legislative history makes clear that a right of renewal is 
limited ``to anyvalid permit issued pursuant to this act * * * with 
respect to areas within the boundaries of the existing permit and upon 
written finding by the regulatory authority that terms of the existing 
permit are being met [* * *.]'' H.R. Rept. No. 95-218, 95th Cong., 1st 
Sess.92 (1977). According to the commenter, a permit that has expired 
is no longer existing, and cannot be renewed, since renewal findings 
must be met for the current, not former, permit.
    In response, we note that, under Section III., above, we are 
disapproving the amendment to the extent that it authorizes the 
issuance of a noncompliance order, rather than an IHCO, to an operator 
who continues to mine under an expired permit, and to the extent that 
it would allow the operator to continue mining under an expired permit 
if it submits a renewal application within 30 days of issuance of the 
notice of noncompliance.

[[Page 29952]]

However, the commenter apparently also contends that an expired permit 
cannot be renewed, under any circumstances. We do not believe a finding 
is required on this question, since our disapprovals require removal of 
all language pertaining to expired permits. However, we expect that we 
could approve a state program amendment that allows expired permits to 
be renewed, assuming all other renewal requirements are met, and 
assuming that mining is not permitted to resume until the renewal 
application is granted.
    Next, the commenter argues that the amendment violates the state 
program obligation to administer and implement the state enforcement 
program in a manner consistent with Federal law and regulations, in 
that it directs the state to issue an enforcement action allowing 
continued mining under an expired permit, provided the renewal 
application is filed. The commenter contends that Kentucky must, in its 
enforcement of the approved program, issue a cessation order to a 
permittee that continues to mine on an expired permit, since Kentucky 
is bound to conform its enforcement authority to 30 CFR part 843.
    In response, we note that, under Section III., above, we are 
disapproving the amendment to the extent that it authorizes the 
issuance of a noncompliance order, rather than an IHCO, to an operator 
who continues to mine under an expired permit, and to the extent that 
it would allow the operator to continue mining under an expired permit 
if it submits a renewal application within 30 days of issuance of the 
notice of noncompliance.
    The commenter also opposes the amendment because it allows either 
the operator or the permittee to submit a permit renewal application. 
It is inappropriate, the commenter contends, to allow an operator to 
submit an application, unless the entity has power of attorney or other 
clear authority to bind the permittee. Otherwise, the operator could 
frustrate the intent of the permittee, in instances where the permittee 
does not desire to renew the permit. In response, we note that we are 
disapproving the sentence that implies that an operator may file a 
renewal application. Moreover, KRS 350.060(14), which is part of 
Kentucky's approved program, states that the ``holders of the permit'' 
may apply for renewal. We construe the word ``holder'' to be synonymous 
with ``permittee.''
    Finally, the commenter believes the amendment violates the 
requirement of 30 CFR 843.11(f) and 30 CFR 840.13(b) that a cessation 
order may not be terminated until it is determined that all conditions, 
practices or violations listed in the order have been abated. The 
violation, which would be mining without a permit, is considered abated 
under the state law upon mere filing of the renewal application. 
Assuming arguendo, that all of the other legal infirmities with the 
state law were resolved, this mandated termination of an unresolved 
violation violates the state's enforcement obligation. The commenter 
argues that a state which has sought and obtained approval of a state 
regulatory program under SMCRA is under a mandatory, non-discretionary 
obligation to maintain, administer and enforce that program in a manner 
consistent with the Secretary's regulations and the federal Act. 30 CFR 
733.11.
    In response, we note that, under Section III., above, we are 
disapproving the amendment to the extent that it would allow the 
operator to continue mining under an expired permit if it submits a 
renewal application within 30 days of issuance of the notice of 
noncompliance.
    The commenter also demands that the amendment be set aside by OSM. 
In response, we note that under Section III., above, OSM will announce 
its intention to set aside the disapproved portions of HB 593 in a 
future Federal Register notice.

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), we solicited comments on the 
proposed amendment submitted on November 3, 1997, from various Federal 
agencies with an actual or potential interest in the Kentucky program. 
No comments were received.

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.).
    None of the revisions that Kentucky proposed to make in its 
amendment pertain to air or water quality standards. Therefore, OSM did 
not request EPA's concurrence.

V. Director's Decision

    Based on the above findings, we approve, with the following 
exceptions, the proposed amendment as submitted by Kentucky on April 
23, 1998.
    We are not approving the phrase ``if a permit has expired or,'' 
contained in KRS 350.060(16). Also, we are not approving the following 
portion of KRS 350.060(16):

    Upon the submittal of a permit renewal application, the operator 
or permittee shall be deemed to have timely filed the permit renewal 
application and shall be entitled to continue, under the terms of 
the expired permit, the surface coal mining operation, pending the 
issuance of the permit renewal.

    We are also requiring Kentucky to amend its program to make it 
clear that a person may not continue to mine on an expired permit, 
except where the permittee has filed a timely and complete application 
for renewal (i.e., the application is filed at least 120 days before 
permit expiration) and the regulatory authority has not yet approved 
the renewal application at the time of permit expiration. Kentucky must 
also amend its program to require the issuance of an IHCO to any person 
mining on an expired permit, except as described in the preceding 
sentence.
    The Federal regulations at 30 CFR part 917, codifying decisions 
concerning the Kentucky program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

Effect of the Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In the 
oversight of the Kentucky program, we will recognize only the statutes, 
regulations, and other materials approved by OSM, together with any 
consistent implementing policies, directives, and other materials. We 
will require that Kentucky enforce only such provisions.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

[[Page 29953]]

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed 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 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.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
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 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 which is the subject of this rule is based upon 
corresponding 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 corresponding Federal regulations.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), this rule will not produce a Federal mandate of $100 million 
or greater in any given year, i.e., it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 28, 2000.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, title 30, chapter VII, 
subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 917--KENTUCKY

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

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

    2. Section 917.12 is added to read as follows:


Sec. 917.12  State regulatory program and proposed program amendment 
provisions not approved.

    (a) The Director does not approve the following provisions of the 
proposed program amendment concerning permit renewals that Kentucky 
submitted on April 23, 1998:
    (1) The phrase ``* * * if a permit has expired or * * *'' in KRS 
350.060(16).
    (2) The following sentence in KRS 350.060(16): ``Upon the submittal 
of a permit renewal application, the operator or permittee shall be 
deemed to have timely filed the permit renewal application and shall be 
entitled to continue, under the terms of the expired permit, the 
surface coal mining operation, pending the issuance of the permit 
renewal.''
    (b) [Reserved]

    3. The table in Sec. 917.15 is amended by revising the table 
headings and adding a new entry in chronological order by ``Date of 
Final Publication'' to read as follows:


Sec. 917.15  Approval of Kentucky regulatory program amendments.

* * * * *

------------------------------------------------------------------------
                                     Date of
  Original amendment submission       final      Citation/description of
               date                publication     approved provisions
------------------------------------------------------------------------
 
*                  *                  *                  *
         *                  *                  *
April 23, 1998...................     05/10/00  KRS 350.060(16) [partial
                                                 approval]; 350.131(2);
                                                 350.139(1); 350.990
                                                 (1), (3), (4), (9), and
                                                 (11).
------------------------------------------------------------------------

* * * * *

    4. Section 917.16 is amended by adding paragraph (o) to read as 
follows:


Sec. 917.16  Required regulatory program amendments.

* * * * *
    (o) By July 10, 2000, Kentucky must submit either a proposed 
amendment or a description of an amendment to be proposed, together 
with a timetable for adoption, to:
    (1) Clarify that a person may not continue to conduct surface coal 
mining operations under an expired permit unless the permittee filed a 
complete application for renewal at least 120 days before the permit 
expired and the regulatory authority had not yet approved or 
disapproved the application when the permit expired.
    (2) Require the issuance of an imminent harm cessation order to any 
person conducting surface coal mining operations under an expired 
permit unless the permittee filed a complete application for renewal at 
least 120 days before the permit expired and the regulatory authority 
had not yet approved or disapproved the application when the permit 
expired.

[FR Doc. 00-11660 Filed 5-9-00; 8:45 am]
BILLING CODE 4310-05-P


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