[Federal Register Volume 65, Number 123 (Monday, June 26, 2000)]
[Proposed Rules]
[Pages 39319-39321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16088]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-226-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period.
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SUMMARY: OSM is announcing a proposed action to preempt and supersede
portions of Kentucky Revised Statute (KRS) 350.060(16). The 1998
Kentucky General Assembly enacted this provision, which pertains to the
renewal of expired permits, into law by passing House Bill 593.
It proposed that if a permit has expired or a permit renewal
application
[[Page 39320]]
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.
Portions of this provision would allow a permittee to continue
mining on an expired permit after the permit renewal application has
been filed within 30 days of the receipt of the NOV, regardless of
whether the application is timely filed, and even if the application is
filed after permit expiration.
OSM is taking this action because the provisions are inconsistent
with the requirements of the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). This determination is based on reasons cited in the
``Director's Findings'' section in a separate notice published on May
10, 2000 (65 FR 29949), announcing disapproval of the statutory
provision.
DATES: If you submit written comments, they must be received by 4:00
p.m. (local time) on July 26, 2000.
ADDRESSES: Mail or hand-deliver your written comments or requests for
further information to William J. Kovacic, Director, Lexington Field
Office, 2675 Regency Road, Lexington, Kentucky 40503. Telephone: (859)
260-8400. E-mail: [email protected].
You may review copies of the Kentucky program, the proposed
modification to the program, and all written comments received in
response to this document at the Lexington Field Office at the address
listed above during normal business hours, Monday through Friday,
excluding holidays.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
Written Comments
If you submit written or electronic comments on the proposed rule
during the 30-day comment period, they should be specific, be confined
to issues pertinent to the notice, and explain the reason for your
recommendation(s). We may not be able to consider or include in the
Administrative Record comments delivered to an address other than the
one listed above (see ADDRESSES).
Electronic Comments
Please submit Internet comments as an ASCII, WordPerfect, or Word
file and avoid using special characters and any form of encryption.
Please also include ``Attn: SPATS No. KY-226-FOR'' and your name and
return address in your Internet message. If you do not receive a
confirmation that we have received your Internet message, contact the
Lexington Field Office at (859)260-8400.
Availability of Comments
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours at the OSM Administrative Record Room (see ADDRESSES).
Individual respondents may request that we withhold their home address
from the rulemaking record, which we will honor to the extent allowable
by law. There may also be circumstances in which we would withhold from
the rulemaking record a respondent's identity, as allowable by law. If
you want us to withhold your name and/or address, you must state this
prominently at the beginning of your comment. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
II. Background
You can find detailed background on the actions proposed in this
document in a notice of final rulemaking pertaining to the Kentucky
program published on May 10, 2000 (65 FR 29949).
III. Director's Findings and Proposed Action
Pursuant to section 505(b) of SMCRA and 30 CFR 730.11(a), we
propose to preempt and supersede certain portions of KRS 350.060(16).
The complete text of KRS 350.060(16) reads as follows:
Any permit renewal shall be for a term not to exceed the period of
the original permit. Application for permit renewal shall be made at
least one hundred twenty (120) days prior to the expiration of the
valid permit. However, if a permit has expired or if a permit renewal
application has not been timely filed, and the operator or permittee
desires to continue the surface coal mining operation, the cabinet
shall forthwith cause a notice of noncompliance to be issued. The
notice of noncompliance shall be deemed to have been complied with, and
the permit may be renewed, if the cabinet receives a permit renewal
application within thirty (30) days of the receipt of the notice of
noncompliance. 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. Failure to comply with the remedial
measures of the notice of noncompliance shall result in the cessation
of the surface coal mining operation.
The specific wording proposed for preemption and supersession are
the phrase ``if a permit has expired or * * *,'' and the following
sentence:
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 taking this action because we have initially determined that
these provisions are inconsistent with section 506 of SMCRA and less
effective than 30 CFR 843.11 based on the reasons cited under
``Director's Findings'' in a separate notice of final rulemaking as
noted above.
We are now soliciting comments on this proposal to preempt and
supersede the portions of KRS 350.060(16) that are quoted above. If we
receive no evidence demonstrating why these portions should not be
preempted and superseded, we will publish a final notice to effect the
supersession of the provisions by Federal law. This action, if taken,
will require the State to operate and enforce the approved program as
if the preempted and superseded provisions did not exist.
IV. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
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 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the
[[Page 39321]]
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 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, 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
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed state regulatory program provision does not
constitute a major federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget 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
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. 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 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. 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.
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 a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 16, 2000.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 00-16088 Filed 6-23-00; 8:45 am]
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