Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Rules and Regulations 29949

prunes are prunes which pass through

openings as follows: for French prunes,

24⁄32 of an inch in diameter; for nonFrench prunes, 30⁄32 of an inch in

diameter.

Dated: May 4, 2000.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 00–11640 Filed 5–9–00; 8:45 am]

BILLING CODE 3410–02–P

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.

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: bkovacic@osmre.gov.

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).

29950 Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Rules and Regulations

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

Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Rules and Regulations 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.

29952 Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Rules and Regulations

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).

Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Rules and Regulations 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:

§ 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 § 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:

§ 917.15 Approval of Kentucky regulatory

program amendments.

* * * * *

Original amendment submission date Date of final

publication Citation/description of 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:

§ 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