27938 Federal Register / Vol. 87, No. 90 / Tuesday, May 10, 2022 / Rules and Regulations 

1921 et seq., 1973c; and Pub. L. 107–273, 116 

Stat. 1758, 1824. 

§ 50.28 [Removed and Reserved] 

■ 2. Section 50.28 is removed and 

reserved. 

Dated: May 5, 2022. 

Merrick B. Garland, 

Attorney General. 

[FR Doc. 2022–10036 Filed 5–5–22; 4:15 pm] 

BILLING CODE 4410–BB–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 917 

[SATS No. KY–261–FOR; Docket ID: OSM– 

2019–0013; SIDIS SS08011000 SX064A000 

222S180110; S2D2S SS08011000 

SX064A000 22XS501520] 

Kentucky Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approval of 

amendment, and removal of a required 

amendment. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSMRE), are approving, subject to 

certain limitations discussed below, an 

amendment to the Kentucky regulatory 

program (Kentucky program) under the 

Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act). The regulatory provisions we are 

approving establish new bond 

requirements for providing sufficient 

financial assurances for the long-term 

treatment of unanticipated pollutional 

discharges at permitted sites. 

Consequently, we are removing a 

required amendment that we imposed 

in 2018 regarding financial assurance 

for the long-term treatment of 

discharges. We are also approving 

revisions to other various bond 

requirements. 

DATES: Effective June 9, 2022. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael Castle, Field Office Director, 

Lexington Field Office, Office of Surface 

Mining Reclamation and Enforcement, 

Telephone: (859) 260–3900, Email: 

mcastle@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Kentucky Program 

II. Submission of the Amendment 

III. OSMRE’s Findings 

IV. Summary and Disposition of Comments 

IV. OSMRE’s Decision 

V. 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 nonIndian 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). Based on these 

criteria, the Secretary of the Interior 

conditionally approved the Kentucky 

program effective May 18, 1982. You 

can find background information on the 

program, including the Secretary’s 

findings, the disposition of comments, 

and conditions of approval in the May 

18, 1982, Federal Register (47 FR 

21434). You can also find later actions 

concerning Kentucky’s program and 

program amendments at 30 CFR 917.11, 

917.12, 917.13, 917.15, 917.16, and 

917.17. The regulatory authority in 

Kentucky is Kentucky’s Energy and 

Environment Cabinet (herein referred to 

as the Cabinet). 

II. Submission of the Amendment 

By letter dated November 25, 2019 

(Administrative Record No. KY 2003), 

the Cabinet submitted an amendment to 

its program under SMCRA (30 U.S.C. 

1201 et seq.). The amendment revises 

chapter 10:015 of title 405 of the 

Kentucky Administrative Regulations 

(KAR), General bonding provisions. The 

regulatory provisions at Section 8(7), 

Bond Rate of Additional Areas, 

establish new requirements for the 

calculation of additional bond amounts 

necessary for the long-term treatment of 

unanticipated pollutional discharges 

(hereafter referred to as ‘‘discharges’’). 

Other bond requirements of a nonsubstantive nature were also included. 

See 405 KAR 10, Bond and Insurance 

Requirements, subchapter 10:015. The 

submission is intended to address 

disapprovals we made in a 2018 

decision regarding the Cabinet’s 

proposed regulations for the long-term 

treatment of discharges in a final rule 

designated KY–256–FOR (KY–256), see 

January 29, 2018, Federal Register (83 

FR 3948), and the resultant action we 

required under the authority of 30 CFR 

732.17(e) and (f). The required action is 

codified in the Kentucky program at 30 

CFR 917.16(p), Required regulatory 

program amendments. The full text of 

the program submission is available at 

https://www.regulations.gov. 

A. Background of Kentucky Program 

Amendment KY–256—In May 2012, in 

accord with 30 CFR 733.12(b), we 

notified the Cabinet that we had reason 

to believe it was not implementing, 

administering, enforcing, and 

maintaining the reclamation bond 

provisions of its approved program in a 

manner that assured ‘‘completion of the 

[applicable] reclamation plan,’’ as 

required by section 509(a) of SMCRA, 

30 U.S.C. 1259(a), Performance bonds. 

The Cabinet responded to this section 

733 notice with three submissions: One 

in September 2012, another in July 

2013, and a third in December 2013. 

The first submission was announced in 

the Federal Register on February 20, 

2013 (78 FR 11796). Subsequently, all 

three submissions were combined (and 

public comment solicited) in a single 

Federal Register document, 80 FR 

15953 (March 26, 2015), in which the 

proposed rule was designated State 

program amendment KY–256. As the 

document explained, KY–256–FOR was 

intended to address the deficiencies 

identified in the section 733 notice. 

B. Partial Approval of KY–256—We 

approved most of the provisions of KY– 

256–FOR in a final rule published in the 

Federal Register on January 29, 2018 

(83 FR 3948). One of the provisions not 

approved, and now under consideration 

in revised form, was subsection 8(7) of 

405 KAR 10:015, which consisted of 

three subsections (8(7)(a), –(b), and 

–(c)). If approved, subsection 8(7)(a) 

would have provided that, for permitted 

sites requiring long-term treatment of 

discharges, the Cabinet must calculate 

an additional bond amount based on the 

estimated annual treatment cost 

provided by the permittee and 

multiplied by twenty years. Focusing on 

this twenty-year multiplier, we 

disapproved the provision in our 

January 2018 final rule because the 

Cabinet had not demonstrated how this 

provision would assure that adequate 

bonding would be calculated for the 

long-term treatment of discharges. In 

doing so, we reaffirmed that abatement 

of unanticipated water pollution is an 

element of reclamation and noted that a 

permittee’s treatment obligation may 

extend in perpetuity. As a result, we 

found the provision less stringent than 

section 509 of SMCRA, 30 U.S.C. 1259, 

and less effective than the Federal 

regulations at 30 CFR part 800 and, on 

that basis, declined to approve it. We 

also declined to approve subsection 

8(7)(b), which would have operated in 

conjunction with subsection 8(7)(a) by 

subjecting the estimate of annual 

treatment cost specified in subsection 


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(a) to verification and acceptance by the 

Cabinet. 

Lastly, we declined to approve 

subsection 8(7)(c), which would have 

allowed permittees to submit to the 

Cabinet for approval a remediation plan 

that demonstrates that substandard 

discharge will be abated through land 

reclamation techniques, prior to phase II 

bond release, in lieu of the bond 

calculation in subsection 8(7)(a). As the 

final rule explained, see 83 FR 3948, 

3955, this provision would have 

effectively created an exception to the 

requirement of SMCRA section 509 that 

a permittee post bond that is fully 

adequate to cover complete reclamation, 

including water treatment, and therefore 

could not be approved. In addition to 

declining to approve the three 

components of subsection 8(7), we also 

required the Cabinet to take certain 

regulatory action pursuant to our 

authority in 30 CFR 732.17(e) and (f), as 

more fully discussed below. 

C. Litigation—Before taking this 

regulatory action, the Cabinet and the 

Kentucky Coal Association (KCA) filed 

separate—but similar—lawsuits against 

the Secretary of the Interior and the 

Deputy Director of OSMRE in the U.S. 

District Court for the Eastern District of 

Kentucky (case nos. 3:18–cv–19, 3:18– 

cv–20), challenging the partial approval 

of KY–256. Prior to the government’s 

deadline to file its initial response to the 

lawsuits, the parties commenced 

settlement negotiations. The parties 

agreed to jointly seek a stay of 

proceedings in each case so that they 

could explore the possibility of 

resolving the lawsuits through 

rulemaking rather than litigation. 

Motions seeking stays were filed in each 

case in June and July 2018. In July 2018, 

the judges in the two cases granted the 

motions and stayed proceedings for 90 

days. Through a series of similar 

motions and orders, the stays have been 

extended to the present day and remain 

in effect. 

D. Required Amendment—The 

Cabinet’s amendment submission is 

intended to satisfy the regulatory action 

required, as codified at 30 CFR 

917.16(p), by addressing the issues 

identified in the final rule for KY–256, 

and is further intended to help resolve 

the pending litigation. In particular, the 

regulatory action we required was for 

the Cabinet to either: (1) Notify us how 

the Cabinet will require operators to 

address financial assurances for the 

long-term treatment of discharges, 

potentially in perpetuity, under its 

currently approved program, given that 

we did not approve new regulatory 

provisions in subsection 8(7) of 405 

KAR 10:015; or (2) submit an 

amendment to its approved program 

that requires operators to provide 

sufficient financial assurances for the 

treatment of discharges for as long as 

such discharges continue to exist. In 

response to the required regulatory 

action, the Cabinet in 2018 initially 

elected the first option, notifying us, 

first verbally and then in writing on 

March 27, 2018, that its program already 

provides adequate financial assurance. 

Following the filing of litigation on 

March 31, 2018, and the subsequent 

agreement of the parties to pursue 

settlement, the Cabinet then elected the 

second option, submitting provisions 

intended to provide financial assurance 

for the treatment of discharges when 

long-term treatment is required. We 

describe our findings on the proposed 

rule, KY–261, in section III, below. 

E. Additional Revisions—In addition 

to responding to the required 

amendment, the Cabinet has proposed 

certain non-substantive revisions at 405 

KAR 10:015. These revisions include 

reference changes and editorial edits but 

do not change the administrative 

regulations substantively; instead, these 

changes clarify content or conform the 

regulation to drafting requirements and 

conventions. The non-substantive 

changes are found in 405 KAR 10:015, 

sections 1(2), 2(5), 2(5)(c)(3)(d), 

2(5)(c)(3)(e), 2(6), 2(6)(b), 2(6)(c), 2(7), 

2(7)(c), 4, 4(1)(b), 4(2)(a), 4(2)(f), 5(1), 

5(2), 6(1), 6(1)(a), 6(1)(c), 6(3), 7(3), 8, 

8(5), 9(4), 10(2), 11(1), 11(2), 11(3), 

11(5), and 12(1)(g). Because the changes 

in these sections are non-substantive, 

we make no findings on them. 

F. Public Notice—We announced 

receipt of the proposed amendment in 

the February 25, 2020, Federal Register 

(85 FR 10634) (Administrative Record 

No. KY–2003–3). 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 

because one was not requested. The 

public comment period ended on March 

26, 2020. Public comments received are 

addressed in section IV of this notice. 

G. Demonstration—During our review 

of the amendments, we requested that 

the Cabinet demonstrate that proposed 

subsection 8(7)(a) would provide 

sufficient financial assurances for longterm treatment sites. By letter dated 

August 28, 2020 (Administrative Record 

No. 2003–5), the Cabinet provided a 

demonstration of the model to be used 

to calculate the additional bond 

amounts. This demonstration included a 

narrative describing how the model 

works and three example scenarios that 

calculated the additional bond amounts, 

which are based on the total annualized 

capital costs and annual treatment costs 

multiplied by a factor of 25. The 

calculation is intended to result in the 

amount of an additional bond necessary 

for the regulatory authority to complete 

reclamation, including treatment of 

discharges, in the event of a forfeiture. 

As part of our review, we met with 

Cabinet representatives on January 19, 

2021. During the meeting, the Cabinet 

provided clarifications on the adequacy 

of the inputs to the model and how the 

model processed this information. 

Cabinet representatives then provided a 

demonstration, supplemented by a 

narrative of the model’s calculation 

process, that adequately addressed our 

questions and comments. 

III. OSMRE’s Findings 

The Cabinet seeks to add 

administrative regulations at 405 KAR 

10:015, subsections 8(7)(a) and (b), to 

address the requirement for sufficient 

financial assurances for the treatment of 

discharges, as identified in the final rule 

for KY–256. The following are the 

findings we made concerning the 

amendment under SMCRA and the 

Federal regulations at 30 CFR 732.15, 

Criteria for approval or disapproval of 

state programs, and 30 CFR 732.17, 

State program amendments, as 

described below. 

A. 405 KAR 10:015 8(7)(a): The 

Cabinet proposes to add subsection 

8(7)(a) to its approved program. As 

mentioned, a provision at this section 

was proposed earlier but disapproved in 

KY–256. The proposed provision states 

that, for any permit identified as 

requiring long-term treatment of a 

discharge, the Cabinet must calculate 

the amount of an additional bond or 

other financial assurance instrument 

based on the estimated annual treatment 

cost, provided by the permittee and 

verified by the Cabinet, multiplied by a 

factor of 25, plus any capital costs of the 

treatment system. 

OSMRE Finding: In KY–256, the 

Cabinet had proposed a new regulation 

at subsection 8(7)(a), which provided 

that, for any permit that had been 

identified as producing long-term 

treatment drainage, the Cabinet would 

calculate the amount of an additional 

bond based on the estimated annual 

treatment cost, as provided by the 

permittee and verified by the Cabinet, 

multiplied by twenty years. We 

disapproved the provision because the 

Cabinet had not demonstrated that a 

twenty-year multiplier would result in 

an adequate bond. We stated that both 

SMCRA and the Federal regulations 

require operators to post bonds that are 

sufficient in amount to assure 


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completion of reclamation if that 

reclamation were to be completed by the 

regulatory authority. This includes 

abatement of any discharges. Therefore, 

absent such a demonstration, we found 

subsection 8(7)(a) less stringent than 

section 509 of SMCRA and less effective 

than the Federal regulations at 30 CFR 

part 800, Bond and Insurance 

Requirements for Surface Coal Mining 

and Reclamation Operations Under 

Regulatory Programs, and we did not 

approve it. 

The proposed regulation modified the 

KY–256 version of 8(7)(a) in three 

important ways. First, when calculating 

the bond amount, the Cabinet would 

now be required to account for capital 

costs, something the earlier version in 

KY–256 did not do. Second, the bond 

calculation basis (annual treatment cost) 

would be subject to a factor of 25, not 

the twenty-year multiplier previously 

proposed. Third, the Cabinet changed 

the reference in the earlier version from 

‘‘additional bond’’ to ‘‘additional bond 

or other financial assurance 

instrument,’’ though the change was not 

explained in the Cabinet’s November 

2019 submission. 

There is no comparable Federal 

regulation that prescribes how financial 

assurance requirements for the longterm treatment of discharges should be 

determined. Absent such regulation, we 

reviewed the model provided by the 

Cabinet to understand how the 

additional bond or other financial 

assurance instrument is to be calculated 

under subsection 8(7)(a). Taken 

together, the provisions of the proposed 

regulation, the Cabinet’s demonstration 

on the workings of its bond calculation 

model, and general bond provisions of 

the Kentucky program form the basis of 

our findings in determining whether the 

proposed provisions meet the 

requirements of section 509 of SMCRA 

and 30 CFR part 800. 

Using this bond calculation model for 

long-term treatment costs, the Cabinet 

determines the amount of bond 

necessary to assure completion of 

reclamation if the work had to be 

performed by the regulatory authority 

following forfeiture. The language of 

subsection 8(7)(a), as proposed, leaves 

the verification and acceptance of the 

long-term treatment cost determination 

to the regulatory authority. We agree 

with this approach and, based on the 

Cabinet’s demonstration of its use of its 

bond calculation model, find this 

method of determining the amount of 

bond necessary for long-term treatment 

of discharges no less stringent than 

section 509 of SMCRA and no less 

effective than the Federal regulations at 

30 CFR part 800. 

We are satisfied that any changed 

circumstances affecting the Cabinet’s 

initial assumptions can be appropriately 

addressed through future bond 

adjustments, as authorized in section 10 

of 405 KAR 10:015. Importantly, bond 

adequacy must be reassessed every two 

years under subsection 6(3) of 405 KAR 

10:015. This approach to bond 

calculation is consistent with the 

Federal regulations at 30 CFR 800.14, 

Determination of bond amount, and 

800.15, Adjustment of amount. Neither 

of these provisions spell out the precise 

parameters for calculation of the 

original bond amount or for periodic 

adjustments of the bond amount. Rather, 

those decisions are to be made by the 

regulatory authority. We expect that 

long-term treatment bonds will be 

reviewed biannually under subsection 

6(3) of 405 KAR 10:015 and adjusted, 

using this bond calculation model for 

long-term treatment costs, as 

appropriate under section 10. 

Finally, we are also satisfied that the 

Cabinet’s bond calculation model for 

long-term treatment costs demonstrates 

an adequate bond amount. Recognizing 

the difficulty of determining an 

adequate bond amount covering 

treatment which may last in perpetuity, 

and that there is no specific Federal 

requirement or guidance on determining 

an adequate amount of a bond covering 

treatment in perpetuity, the Cabinet 

chose to use a surrogate of seventy-five 

years. We consider the Cabinet’s use of 

the seventy-five-year surrogate 

acceptable considering that the nature 

and extent of long-term discharges can 

change over time, that section 10 of 405 

KAR 10:015 authorizes the Cabinet to 

adjust bond amounts, and that section 

6(3) of the same subchapter requires 

biannual assessments of bond adequacy. 

Given these considerations, we 

conclude that subsection 8(7)(a)’s 

calculation provisions meet the 

requirements of section 509 of SMCRA, 

including the requirement in section 

509(a) that the amount of the bond ‘‘be 

sufficient to assure the completion of 

the reclamation plan if the work had to 

be performed by the regulatory authority 

in the event of forfeiture,’’ and that 

subsection 8(7)(a) is no less stringent 

than section 509 of SMCRA and no less 

effective than the regulations at 30 CFR 

part 800. Because the Cabinet did not 

provide any explanation or justification 

in its submission for expanding the 

scope to include other financial 

assurance instruments beyond those 

already approved in section 3, we are 

approving the regulation but only to the 

extent that the phrase ‘‘additional bond 

or other financial assurance instrument’’ 

in subsection 8(7)(a) refers to the 

relevant performance bonds already 

authorized in section 3 of 405 KAR 

10:015. We maintain oversight of the 

regulatory program and the bonding 

system under the approved Kentucky 

program. Should we become aware that 

the State’s bonding program is 

insufficient, we have the authority to 

require the State to take appropriate 

action. We also note our amenability to 

considering, in the future, a proposed 

amendment seeking approval of the use 

of ‘‘other financial assurance 

instruments,’’ one that explains what 

they are and justifies Kentucky’s legal 

authority to use such instruments. 

B. 405 KAR 10:015 8(7)(b): The 

Cabinet proposes to add subsection 

8(7)(b) to its approved program. A 

provision at this section was previously 

proposed but disapproved in KY–256. 

The proposed provision provides that 

the long-term treatment cost estimate is 

subject to verification and acceptance by 

the Cabinet and that the Cabinet will 

use its own estimate for annual 

treatment costs if it cannot verify the 

accuracy of the permittee’s estimate. 

OSMRE Finding: Except for the added 

clarification in subsection 8(7)(b) that 

the cost estimate called for in subsection 

8(7)(a) is a ‘‘long-term treatment’’ cost 

estimate, the Cabinet had proposed this 

same language under KY–256. We did 

not approve this provision previously 

because it referenced the bond 

calculation in 8(7)(a) that we were not 

approving. Because we are approving 

the provisions of new subsection 8(7)(a), 

this reference is no longer a concern. We 

therefore find that subsection 8(7)(b) is 

no less stringent than section 509 of 

SMCRA and no less effective than the 

Federal regulations at 30 CFR part 800, 

including 30 CFR 800.14(a)(1), which 

requires that the amount of bond 

required be determined by the 

regulatory authority. On this basis, it is 

approved. 

C. 405 KAR 10:015 8(7)(c): The 

Cabinet’s submission includes the 

deletion of subsection 8(7)(c), which 

was proposed in KY–256 and would 

have provided that, in lieu of posting 

the additional bond amount, the 

permittee would submit a satisfactory 

reclamation and remediation plan for 

any area producing a discharge. As 

originally proposed, the reclamation 

plan would have to demonstrate that a 

pollutional discharge can be 

permanently abated by land reclamation 

techniques prior to phase II bond 

release. 

OSMRE Finding: We did not approve 

the new regulation proposed in KY–256 

because we found the allowance of a 

remediation plan that is based on land 

reclamation in lieu of posting adequate 


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bond unacceptable. As we stated, 

neither SMCRA nor its implementing 

regulations provide any exceptions to 

the requirement to post a bond that 

assures completion of reclamation, 

including water treatment. For this 

reason, we found the provision to be 

less stringent than section 509 of 

SMCRA and less effective than the 

Federal regulations at 30 CFR part 800. 

Because we never approved the 

provision, we are not making a finding 

on this deletion. 

IV. Summary and Disposition of 

Comments 

Public Comments 

In the February 25, 2020, Federal 

Register document announcing our 

receipt of this amendment, we asked for 

public comments (85 FR 10634). The 

comment period closed on March 26, 

2020. No requests for public meetings or 

hearings were received. By letter dated 

March 26, 2020, we received comments 

from the KCA, which represents the 

producers of the majority of coal mined 

in Kentucky and over one hundred 

additional businesses and organizations 

that depend upon or support the 

Kentucky coal mining industry 

(Administrative Record No. KY–2003– 

4). 

In its comments, KCA supported 

approval of the regulations proposed by 

the Cabinet, noting that it has actively 

participated in the Kentucky rulemaking 

process and has been involved in the 

noted litigation concerning partial 

approval of KY–256. The KCA stated 

that the proposed revisions are as 

stringent as the requirements of SMCRA 

and satisfy the criteria for approval 

under 30 CFR 732.15 and should be 

approved without delay. The KCA 

mentioned its understanding that the 

Cabinet has or can provide significant 

evidence demonstrating that the 

bonding calculation methodology 

contained in the revised subsection 8(7) 

will ensure adequate bonding. The KCA 

emphasized that its member companies 

require regulatory certainty and clarity 

and urged approval without delay. 

OSMRE Response: Because the 

comments are in support of the approval 

of the amendment, a position with 

which OSMRE agrees, we make no 

response. 

Federal Agency Comments 

On December 16, 2019, in accord with 

30 CFR 732.17(h)(11)(i) and section 

503(b) of SMCRA, we requested 

comments on the amendment from 

various Federal agencies with an actual 

or potential interest in the Kentucky 

program (Administrative Record No. 

2003–1). No Federal agency comments 

were received. 

Environmental Protection Agency (EPA) 

Concurrence and Comments 

Under 30 CFR 732.17(h)(11)(ii), we 

are required to obtain 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 

the Cabinet proposes to make in this 

amendment pertain to or affect air or 

water quality standards. Therefore, we 

did not ask EPA to concur on the 

amendment. However, on December 16, 

2019, under 30 CFR 732.17(h)(11)(i), we 

requested comments from the EPA 

(Administrative Record No. 2003–1). 

The EPA did not provide any 

comments. 

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 December 16, 2019, we 

requested comments from the Kentucky 

Heritage Council on this amendment 

(Administrative Record No. 2003–1). We 

did not receive any comments. 

V. OSMRE’s Decision 

Based on the above findings, we are 

approving KY–261 as submitted by the 

Cabinet on November 25, 2019. We are 

approving the amendment subject to our 

understanding regarding the meaning of 

‘‘other financial assurance instrument,’’ 

and removing the required amendment 

at 30 CFR 917.16(p). 

To implement this decision, we are 

amending the Federal regulations, at 30 

CFR part 917, which codify decisions 

concerning the Kentucky program. In 

accordance with the Administrative 

Procedure Act (5 U.S.C. 500 et seq.), this 

rule will take effect 30 days after the 

date of publication. Section 503(a) of 

SMCRA requires that the State’s 

program demonstrate that the State has 

the capability of carrying out the 

provisions of the Act and meeting its 

purposes. SMCRA requires consistency 

of State and Federal standards, which 

this amendment achieves. For these 

reasons, we conclude that KY–261 

satisfies the required action identified in 

our January 2018 final rule on KY–256. 

It provides a mechanism for calculating 

an additional bond amount at the time 

when the regulatory agency determines 

that long-term treatment is required. 

VI. Statutory and Executive Order 

Reviews 

Executive Order 12630—Governmental 

Actions and Interference With 

Constitutionality Protected Property 

Rights 

This rule would not effect a taking of 

private property or otherwise have 

taking implications that would result in 

property being taken for Government 

use without just compensation under 

the law. Therefore, a takings implication 

assessment is not required. This 

determination is based on an analysis of 

the relevant Federal regulations. 

Executive Order 12866—Regulatory 

Planning and Review and 13563— 

Improving Regulation and Regulatory 

Review 

Executive Order 12866 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, the approval of State 

program amendments is exempted from 

OMB review under Executive Order 

12866. 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(a) of Executive Order 12988. The 

Department has 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 or to the program 

amendment that the Cabinet drafted. 

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 


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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 

Government 

The Department of the Interior strives 

to strengthen its government-togovernment 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 federally recognized 

Tribes or on the distribution of power 

and responsibilities between the Federal 

Government and Tribes. Therefore, 

consultation under the Department’s 

tribal consultation policy is not 

required. The basis for this 

determination is that our decision on 

the Kentucky program does not include 

Tribal lands or affect regulation of 

activities on Tribal lands. Tribal lands 

are regulated independently under the 

applicable approved Federal program. 

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 

a significant energy action under the 

definition in Executive Order 13211, a 

Statement of Energy Effects is not 

required. 

Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This rule is not subject to Executive 

Order 13045 because this is not an 

economically significant regulatory 

action as defined by Executive Order 

12866; and this action does not address 

environmental health or safety risks 

disproportionately affecting children. 

National Environmental Policy Act 

Consistent with sections 501(a) and 

702(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). 

National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act (NTTAA) (15 U.S.C. 3701 et seq.) 

directs OSMRE to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. (OMB Circular 

A–119 at p. 14) This action is not 

subject to the requirements of section 

12(d) of the NTTAA because application 

of those requirements would be 

inconsistent with SMCRA. 

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 setting 

minimum bond requirements for surface 

coal mining and reclamation operations 

under regulatory programs, 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. 

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 will 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 an analysis of 

the Federal regulations setting 

minimum bond requirements for surface 

coal mining and reclamation operations 

under regulatory programs, 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 AtlanticAppalachian Region. 

For the reasons set out in the 

preamble, 30 CFR part 917 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 917.15 is amended in the 

table in paragraph (a) by adding an entry 

for ‘‘November 25, 2019’’ in 

chronological order by ‘‘Date of Final 

Publication’’ to read as follows: 

§ 917.15 Approval of Kentucky regulatory 

program amendments. 

(a) * * * 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 87, No. 90 / Tuesday, May 10, 2022 / Rules and Regulations 27943 

Original amendment 

submission date 

Date of final 

publication Citation/description 

*******

November 25, 2019 ................. May 10, 2022 ... 405 KAR 10:015 8(7)(a) and (b) (bonding rate of additional areas); 405 KAR 10:015, sections 1(2), 2(5), 2(5)(c)(3)(d), 2(5)(c)(3)(e), 2(6), 2(6)(b), 2(6)(c), 2(7), 2(7)(c), 4, 4(1)(b), 

4(2)(a), 4(2)(f), 5(1), 5(2), 6(1), 6(1)(a), 6(1)(c), 6(3), 7(3), 8, 8(5), 9(4), 10(2), 11(1), 11(2), 

11(3), 11(5), and 12(1)(g) (non-substantive revisions). 

* * * * * 

§ 917.16 [Amended] 

■ 3. Section 917.16 is amended by 

removing and reserving paragraph (p). 

[FR Doc. 2022–09982 Filed 5–9–22; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket No. USCG–2022–0271] 

Special Local Regulations; Annual Les 

Cheneaux Islands Antique Wooden 

Boat Show; Hessel, MI 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Notification of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

the Annual Les Cheneaux Islands 

Antique Wooden Boat Show special 

local regulation on Marquette Bay, 

Hessel, MI, to protect the safety of life 

and property on navigable waters prior 

to, during, and immediately after this 

event. During the enforcement period, 

entry into, transiting, or anchoring 

within the regulated area is prohibited 

unless authorized by the Captain of the 

Port Sault Sainte Marie or a designated 

representative. 

DATES: The regulations in 33 CFR 

100.922 will be enforced from 6 a.m. 

through 8 p.m. on August 13, 2022. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this 

notification of enforcement, call or 

email LT Deaven Palenzuela, Chief of 

Waterways Management Division, U.S. 

Coast Guard; telephone 906–635–3223, 

email ssmprevention@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce the special local 

regulations in 33 CFR 100.922 for the 

Annual Les Cheneaux Islands Antique 

Wooden Boat Show in Hessel, MI, from 

6 a.m. through 8 p.m. on August 13, 

2022. This action is being taken to 

protect the safety of life and property on 

navigable waters prior to, during, and 

immediately after the event. Our special 

local regulations for the annual Les 

Cheneaux Islands Antique Wooden Boat 

Show § 100.922, specifies the location of 

the regulated area which encompasses 

portions of Marquette Bay, Hessel, MI. 

During the enforcement period, all 

vessels while in the regulated area will 

operate at a no wake speed and follow 

the directions of the on-scene patrol 

commander. The Coast Guard may be 

assisted by other Federal, State, or local 

law enforcement agencies in enforcing 

this regulation. 

In addition to this notification of 

enforcement in the Federal Register, the 

Coast Guard plans to provide 

notification of this enforcement period 

via the Local Notice to Mariners and/or 

marine information broadcasts. 

Dated: May 3, 2022. 

A.R. Jones, 

Captain, U.S. Coast Guard, Captain of the 

Port Sault Sainte Marie. 

[FR Doc. 2022–10007 Filed 5–9–22; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–0270] 

Safety Zones; Annual Events in the 

Captain of the Port Buffalo Zone— 

Cleveland National Air Show 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Notification of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

a safety zone for the Cleveland National 

Airshow from September 1 through 

September 5, 2022, to provide for the 

safety of life and property on navigable 

waters during this event. Our regulation 

for annual events in the Captain of the 

Port Buffalo Zone identifies the 

regulated area for this event in 

Cleveland, OH. During the enforcement 

period, no person or vessel may enter 

the safety zone without the permission 

of the Captain of the Port Buffalo. 

DATES: The regulations in 33 CFR 

165.939 will be enforced for the 

Cleveland National Airshow safety zone 

listed in item (d)(2) in the Table to 

§ 165.939 from 9 a.m. through 6 p.m., 

each day from September 1, 2022, 

through September 5, 2022. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this 

notification of enforcement, call or 

email LT Jared Stevens, Waterways 

Management Division, Marine Safety 

Unit Cleveland, U.S. Coast Guard; 

telephone 216–937–0124, email D09- 

SMB-MSUCLEVELAND-WWM@

uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce the safety zone listed 

in 33 CFR 165.939 for the Cleveland 

National Airshow daily from 9 a.m. 

through 6 p.m. on September 1 through 

September 5, 2022. This action is being 

taken to provide for the safety of life on 

navigable waterways during this multiday event. Our regulation for annual 

events in the Captain of the Port Buffalo 

Zone identifies the regulated area for the 

Cleveland National Airshow which 

encompasses all U.S. waters of Lake Erie 

and Cleveland Harbor (near Burke 

Lakefront Airport) from 41°30′20′′ N and 

081°42′20′′ W to 41°30′50′′ N and 

081°42′49′′ W, to 41°32′09′′ N and 

081°39′49′′ W, to 41°31′53′′ N and 

081°39′24′′ W. 

Pursuant to 33 CFR 165.23, entry into, 

transiting, or anchoring within the 

safety zone during the enforcement 

period is prohibited unless authorized 

by the Captain of the Port Buffalo or 

their designated representative. Those 

seeking permission to enter the safety 

zone may request permission from the 

Captain of Port Buffalo via VHF Channel 

16. Vessels and persons granted 

permission to enter the safety zone shall 

obey the directions of the Captain of the 

Port Buffalo or his designated 

representative. While within a safety 

zone, all vessels shall operate at the 

minimum speed necessary to maintain a 

safe course. 

In addition to this notification of 

enforcement in the Federal Register, the 

Coast Guard plans to provide 


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