[Federal Register Volume 60, Number 31 (Wednesday, February 15, 1995)]
[Rules and Regulations]
[Pages 8558-8560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3743]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917


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 a proposed amendment to the Kentucky 
regulatory program (hereinafter referred to as the Kentucky program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
Kentucky has proposed revisions to the Kentucky Administrative Rules 
(KAR) at 405 KAR 7:080 concerning the types of assistance provided by 
Kentucky's Small Operator Assistance Program (SOAP) and the eligibility 
criteria for that assistance. The amendment is intended to revise the 
Kentucky program to be consistent with changes in section 507 of SMCRA 
enacted by Congrss as part of the Energy Policy Act of 1992, Public Law 
102-486.

effective date: February 15, 1995.

for further information contact: William J. Kovacic, Director, 
Lexington Field Office, Office of Surface Mining Reclamation and 
Enforcement, 2675 Regency Rd, Lexington, Kentucky 40503. Telephone: 
(606) 233-2896.

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. Background information on the Kentucky 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in the May 18, 
1982, Federal Register (47 FR 21404). Subsequent actions concerning 
conditions of approval and program amendments can be found at 30 CFR 
917.11, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

    By letter dated April 26, 1994 (Administrative Record No. KY-1278), 
Kentucky submitted a proposed amendment to its program on its own 
initiative. This amendment proposed to revise ten sections of 
Kentucky's regulations at 405 KAR 7:080 concerning Kentucky's Small 
Operator Assistance Program (SOAP). The proposed amendment included 
revisions to the sections pertaining to program services, eligibility 
for services, information requirements, and applicant liability. It 
also contained editorial revisions and clarifications of other 
sections.
    OSM announced receipt of the proposed amendment in the May 20, 
1994, Federal Register (59 FR 26471), and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing on the adequacy of the proposed amendment. The public comment 
period closed on June 20, 1994.
    In the September 1, 1994, Federal Register (59 FR 45201), the 
Director of OSM announced his decision to approve the amendment, with 
certain exceptions. As part of his decision, the Director required 
Kentucky to submit a second proposed amendment to further revise 405 
KAR 7:080 sections 5(2) and 11(1) to:
    (1) Delete the phrase ``the twelve (12) months immediately 
following the date the permit is issued'';
    (2) Provide that an applicant establish that his or her probable 
total attributed annual production from all locations on which the 
operator is issued the surface coal mining and reclamation permit will 
not exceed 300,000 tons; and
    (3) Either delete the word ``laboratory'' in the phrase ``The 
applicant shall reimburse the cabinet for the costs of the laboratory 
services performed * * *'' or otherwise specify that the costs of all 
services rendered pursuant to 405 KAR 7:080 shall be reimbursed by SOAP 
recipients.
    By letter dated October 3, 1994 (Administrative Record No. KY-
1320), Kentucky submitted further rule revisions in an amendment 
intended to address the requirements in the Director's September 1, 
1994, decision and to make other editorial corrections to Kentucky's 
regulations. OSM announced receipt of the proposed amendment in the 
November 14, 1994, Federal Register (59 FR 56449), and in the same 
document opened the public comment period and provided an opportunity 
for a public hearing on the adequacy of the proposed amendment. The 
public comment period closed on December 14, 1994.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment.
    Revisions not specifically discussed below concern nonsubstantive 
wording changes, or cross-references and paragraph notations to reflect 
organizational changes resulting from this amendment.

A. Revisions to Kentucky's Regulations That Are Substantively Identical 
to the Corresponding Provisions of the Federal Regulations

                                                                                                                
[[Page 8559]]                                                                                                   
------------------------------------------------------------------------
 State regulations (405                             Federal regulations 
       KAR 7:080)                 Subject            (30 CFR part 795)  
------------------------------------------------------------------------
Section 5(2)...........  Annual Coal Production..  795.6(a)(2).         
Section 5(2)(a)........  Ownership of the          795.6(a)(2)(i).      
                          Applicant.                                    
Section 5(2)(b)........  Ownership of the          795.6(a)(2)(ii).     
                          Applicant.                                    
Section 11(1)..........  Services Performed......  795.12(a).           
Section 11(1)(e).......  Transfer of Permit......  795.12(a)(3).        
------------------------------------------------------------------------

    Because the above, proposed revisions are identical in meaning to 
the corresponding Federal regulations, the Director finds that these 
proposed rules are no less effective than the Federal rules.

B. Revisions to Kentucky's Regulations That Are Not Substantively 
Identical to the Corresponding Provisions of the Federal Regulations

1. 405 KAR 7:080 Section 8. Information requirements
    Kentucky proposes to revise 405 KAR 7:080 sections 8(2)(a)(11) and 
(b)(11) to authorize the use of SOAP assistance to collect and analyze 
information required by the Kentucky regulations at 405 KAR 8:030 and 
040, Section 30; MRP. These regulations concern information necessary 
for the protection of historically or archaeologically significant 
sites of public parks and historic places.
    The Federal regulations at 30 CFR part 795.9(b)(4) authorize use of 
SOAP funding to collect historic or archaeological information but do 
not mention the protection of public parks. The Director finds that 405 
KAR 7:080 sections 8(2)(a)(11) and (b)(11), as revised, are no less 
effective than the corresponding Federal regulations at 30 CFR 
795.9(b)(4) with the understanding that Kentucky may authorize the use 
of SOAP funds to collect and analyze historical or archaeological 
information required by Kentucky for historic sites but not to collect 
and analyze any additional information required by Kentucky for public 
parks.
2. 405 KAR 7:080 Section 11. Applicant liability
    Kentucky proposes to revise 405 KAR 7:080 section 11(1)(e) to 
require that the SOAP applicant reimburse Kentucky for the costs of 
SOAP-funded services if the permit rights are sold, transferred, or 
assigned to another person and if that person's coal production exceeds 
the 300,000 ton annual limit during the twelve months immediately 
following the date the original permit is reissued in the name of the 
successor.
    The revised Kentucky rules differ slightly from the corresponding 
Federal regulations at 30 CFR 795.12(a)(3) which refer to the twelve-
month period after the date the permit was originally issued. The 
Director finds that 405 KAR 7;080 section 11(1)(e), as revised, is no 
less effective than the corresponding Federal regulations at 30 CFR 
795.12(a)(3) for two reasons:
    (1) The Kentucky regulations require reimbursement in every 
instance in which the Federal regulations require reimbursement; and
    (2) The additional reimbursement requirements imposed by Kentucky 
in the event of permit sale, transfer, or assignment would not 
adversely impact the availability of SOAP assistance to eligible small 
operators.

C. Revisions to Kentucky's Regulations With no Corresponding Federal 
Provisions

1. 405 KAR 7:080 Section 6. Filing for assistance
    Kentucky proposes to revise 405 KAR 7:080 section 6 by changing the 
reference date of Kentucky's SOAP application form in the rule from 
October 1991 to September 1994, with the latter date reflecting 
Kentucky's most recent revision to that form. Kentucky's SOAP 
application form date has no equivalent in the corresponding Federal 
regulations at 30 CFR part 795.7.
    The Director finds that the proposed revision is necessary for the 
accuracy of the Kentucky regulations and is not inconsistent with any 
requirement of SMCRA or the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. No one requested an 
opportunity to speak at a public hearing, so no hearing was held.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Kentucky program. The U.S. 
Environmental Protection Agency noted that the reference in 405 KAR 
7:080 section 10(2)(a)(6) to the document ``Standard Methods for the 
Examination of Water and Wastewater,'' 14th edition, 1975, should be 
updated to refer to the 18th edition, 1992. The Director concurs with 
this comment even though the referenced Kentucky regulations was not 
affected by the program amendment which is the subject of this final 
rule. OSM has notified Kentucky of this U.S. EPA comment and has 
requested that the State make this correction in its next revision of 
405 KAR 7:080. The U.S. Fish and Wildlife Service, the Mine Safety and 
Health Administration, the U.S. Forest Service, and the U.S. Bureau of 
Mines responded that they had no comment on the proposed amendment.

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 this 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, the Director approves the proposed 
amendment as submitted by Kentucky on October 3, 1994.
    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 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, [[Page 8560]] 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, the Director will recognize 
only the statutes, regulations and other materials approved by OSM, 
together with any consistent implementing policies, directives and 
other materials, and will require the enforcement by Kentucky of 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).

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (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.

List of Subjects in 30 CFR 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 7, 1995.
Richard J. Seibel,
Acting Assistant Director, Eastern Support 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 917.15 is amended by adding paragraph (xx) read as 
follows:


Sec. 917.15  Approval of regulatory program amendments.

* * * * *
    (xx) Revisions to the following rules, as submitted to OSM on 
October 3, 1994, are approved effective February 15, 1995.

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           405 KAR 7:080                  Small operator assistance     
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Section 5(2).......................  Annual Coal Production.            
Section 5(2) (a) and (b)...........  Ownership of the Applicant.        
Section 6..........................  SOAP Application Form.             
Section 8(2)(a)(11)................  Information Requirements.          
Section 8(2)(b)(11)................  Information Requirements.          
Section 11(1)......................  Services Performed.                
Section 11(1)(e)...................  Sale, Transfer, or Assignment of   
                                      Permit Rights.                    
------------------------------------------------------------------------

    3. Section 917.16 paragraph (1) is removed.
[FR Doc. 95-3743 Filed 2-14-95; 8:45 am]
BILLING CODE 4310-05-M