[Federal Register: July 16, 2003 (Volume 68, Number 136)]
[Rules and Regulations]
[Page 41911-41913]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jy03-6]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-242-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; withdrawal of required amendment.
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SUMMARY: We are withdrawing a required amendment to the Kentucky
regulatory program (the Kentucky program) under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act). The required
amendment concerns the determination of the premining use of land that
was not previously mined. In doing so, we find that the Kentucky
program is no less effective than the corresponding Federal
regulations.
EFFECTIVE DATE: July 16, 2003.
FOR FURTHER INFORMATION CONTACT: Kentucky Field Office Director William
J. Kovacic. Telephone: (859) 260-8402; Internet address:
wkovacic@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Submission of the Required Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Kentucky Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Kentucky program on May 18, 1982.
You can find background information on the Kentucky program,
including the Secretary's findings, the disposition of comments, and
conditions of approval in the May 18, 1982, Federal Register (47 FR
21426). You can also find later actions concerning Kentucky's program
and program amendments at 30 CFR 917.12, 917.13, 917.15, 917.16 and
917.17.
II. Submission of the Required Amendment
On October 1, 1992, we published, in the Federal Register (57 FR
45295), a requirement that Kentucky amend their program to provide that
in determining premining uses of land not previously mined, the land
must have been properly managed. We codified the required amendment in
the Federal regulations at 30 CFR 917.16(g). Subsequent review of
Kentucky's program led to our determination that this requirement may
not be necessary to assure that Kentucky's program is as effective as
the Federal regulations. We announced our intent to reconsider this
required amendment in the April 29, 2003, Federal Register (68 FR
22646). In the same document, we invited public comment on the proposed
removal of the required amendment. The public comment period closed on
May 29, 2003. We received comments from one Federal agency.
III. OSM's Findings
Following are the findings we made concerning the proposed removal
of the required amendment under SMCRA and the Federal regulations at 30
CFR 732.15 and 732.17.
The Kentucky regulations at 405 Kentucky Administrative Regulations
(KAR) 16:210 and 405 KAR 18:220 Section 1 (1)(a) and (b) currently
provide:
Prior to the final release of performance bond, affected areas
shall be restored in a timely manner:
(a) To conditions capable of supporting the uses which the areas
were capable of supporting before any mining; or
(b) To conditions capable of supporting higher or better
alternative uses as approved by the cabinet under Section 4 of this
administrative regulation.
[[Page 41912]]
These provisions are no less effective than their Federal
counterparts at 30 CFR 816.133(a) and 817.133(a). The State regulations
at 405 KAR 16:210 Section 2(1) states in relevant part, ``the premining
use of land to which the postmining land use is compared shall be those
uses which the land previously supported if the land has not been
previously mined.'' When Kentucky submitted this change in 1992, OSM
indicated that, ``[t]his rule, while similar to the Federal rule at 30
CFR 816.133(b), fails to provide that a postmining land use must be
compared to premined land which was properly managed, as set forth in
the cited Federal rule''. [October 1, 1992, Federal Register (57 FR
45295, 45300)]. When OSM determined that the Kentucky rule was less
effective, to the extent Kentucky failed to require a comparison to a
premining land use that was properly managed, OSM required an
amendment. The required amendment at 30 CFR 917.16(g) requires Kentucky
to submit proposed revisions to its regulations to provide that in
determining premining uses of land not previously mined, the land must
have been properly managed.
We find, as discussed below, that the Kentucky program as it
currently exists is no less effective than the Federal regulations and
that the required amendment at 30 CFR 917.16(g) can be removed.
The Kentucky program, like the Federal regulations at 30 CFR
816.133(a) and 817.133(a), requires that all disturbed areas be
restored in a timely manner to conditions that are capable of
supporting either the uses that they were capable of supporting before
any mining or any approved higher or better uses. (The Kentucky program
also extends this requirement to all affected areas and does not limit
it to disturbed areas.) In general, compliance with this requirement
rests on a determination that the site has been restored to a condition
capable of supporting the approved postmining land use. This
determination consists primarily of two components: (1) Site
configuration, which is addressed by the backfilling and grading
regulations and is not dependent upon premining land use or management;
and (2) revegetation success.
As authorized by 30 CFR 816.116 and 816.117, the Kentucky program
(see 405 KAR 16:200/18:200 Section 5) relies primarily upon technical
standards (ground cover; productivity standards; and tree and shrub
stocking standards) to evaluate revegetation success for the various
postmining land use categories. These technical standards for ground
cover, stocking, and production are not site specific and apply
regardless of how the land was used or managed before mining. The
technical standards are based on accepted management practices for the
land use in question.
Further, Kentucky's rules allow the use of reference areas to
evaluate revegetation success. These references must be on unmined
areas and as close to the permit area as possible. Under 405 KAR
16:200/18:200 Section 7, reference areas must be managed in accordance
with the regional norm for the approved postmining land use. Regional
norms would not be considered improper management practices for
purposes of determining whether the land has been restored to its
premining capability.
For these reasons, we find that, with respect to the provision at
issue in 30 CFR 917.16(g), Kentucky's program is no less stringent than
SMCRA and no less effective than the Federal regulations implementing
SMCRA. Therefore, we are removing the required amendment at 30 CFR
917.16(g).
IV. Summary and Disposition of Comments
Public Comments
No public comments were received on this proposed action.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on April
29, 2003, we requested comments on the proposed removal of the required
amendment at 30 CFR 917.16(g). We received one Federal Agency comment.
On May 14, 2003, we received a comment from the U.S. Department of
Labor's Mine Safety and Health Administration (MSHA) (Administrative
Record No. KY-1579). The letter indicated that upon review of the
proposed removal of the required amendment, MSHA has determined that
there will be no impact of concern to their office.
On June 16, 2003, the USFWS contacted the Lexington Field Office
and informed them that they would have no comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get a
written concurrence from EPA for those provisions of the program
amendment that relate to air or water quality standards issued under
the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the
Clean Air Act (42 U.S.C. 7401 et seq.). This amendment does not pertain
to air or water quality standards. Therefore, we did not ask the EPA
for their concurrence or comment.
V. OSM's Decision
Based on the above finding, we are removing the required amendment
to Kentucky's program relating to the determination of premining uses
of land not previously mined having to be properly managed.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 917, which codify decisions concerning the Kentucky
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. 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. Making this regulation effective immediately will expedite
that process. SMCRA requires consistency of State and Federal
standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that 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 because
each 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
the Federal regulations at 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.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the
[[Page 41913]]
roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between Federal Government and Indian tribes. The
basis for this determination is that our decision is on a State
regulatory program and does not involve a Federal program involving
Indian tribes.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 that
requires agencies to prepare a Statement of Energy Effects for a rule
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 expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because 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 certifies 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
counterpart 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. 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 counterpart 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. For the reasons
previously stated, 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
upon the fact that the State submittal which is the subject of this
rule is based upon counterpart Federal regulations for which an
analysis was prepared and a determination made that the Federal
regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 27, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
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For the reasons set out in the preamble, 30 CFR Part 917 is amended as
set forth below:
PART 917--KENTUCKY
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1. The authority citation for Part 917 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 917.16 [Amended]
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2. Section 917.16 is amended by removing and reserving paragraph (g).
[FR Doc. 03-17966 Filed 7-15-03; 8:45 am]
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