[Federal Register Volume 67, Number 118 (Wednesday, June 19, 2002)]
[Proposed Rules]
[Pages 41653-41655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15484]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-238-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement(OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We are announcing a proposed amendment to the Kentucky
regulatory program (the ``Kentucky program'') under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act). Kentucky
proposes additions to its statutes about permittees' access to land to
abate violations and intends to revise its program to be consistent
with SMCRA. This document gives the times and locations that the
Kentucky program and proposed amendment to that program are available
for your inspection, the comment period during which you may submit
written comments on the amendment, and the procedures that we will
follow for the public hearing, if one is requested.
DATES: We will accept written comments on this amendment until 4 p.m.,
e.s.t. July 19, 2002. If requested, we will hold a public hearing on
the amendment on July 15, 2002. We will accept requests to speak at a
hearing until 4 p.m., e.s.t. on July 5, 2002.
ADDRESSES: You should mail or hand deliver written comments and
requests to speak at the hearing to William J. Kovacic at the address
listed below.
You may review copies of the Kentucky program, this amendment, a
listing of any scheduled public hearings, and all written comments
received in response to this document at the addresses listed below
during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the amendment by contacting
OSM's Lexington Field Office.
William J. Kovacic, Lexington Field Office, Office of Surface Mining
Reclamation and Enforcement, 2675 Regency Road, Lexington, Kentucky
40503, Telephone: (859) 260-8400. E-mail: [email protected].
Department of Surface Mining Reclamation and Enforcement, 2 Hudson
Hollow Complex, Frankfort, Kentucky 40601, Telephone: (502) 564-6940.
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FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone: (859)
260-8400. Internet: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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 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 of
the Kentucky program in the May 18, 1982, Federal Register (47 FR
21404). 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.
II. Description of the Proposed Amendment
By letter dated April 25, 2002 (Administrative Record No. KY-1530),
Kentucky sent us an amendment to its program under SMCRA (30 U.S.C.
1201 et seq.). Kentucky sent the amendment at its own initiative. A
summary of the amended language follows. It amends the Kentucky Revised
Statutes (KRS) at 350.280 and is referenced as Kentucky House Bill 809.
Emergencies: If Kentucky issues a cessation order requiring the
immediate abatement of a violation based on imminent danger to the
health and safety of the public or significant environmental harm, and
the order requires access to property for which the permittee does not
have legal right of entry and has been denied access to abate the
violation, an easement of necessity is recognized on behalf of the
permittee for the limited purpose of abating the violation. The
easement becomes effective and the permittee is authorized to enter the
property to undertake immediate action to abate the violation if he/she
concurrently: (a) Provides to the property owner or legal occupant a
copy of the cessation order; (b) provides to the owner an affadivit
that the permittee has been denied access to the property; and (c)
provides to the owner a statement that within three days of his entry
to the property the permittee will obtain a qualified appraisal of the
property damages, including loss of use, that will result from the
violation as abated and those that are likely to result from the
permittee's entry to abate the violation, and that the permittee will,
at that time, pay the owner the amount of the damages specified in the
appraisal.
The permittee must deliver the appraisal as promised, and the owner
has three days to accept or reject it in writing. If the owner does not
accept or reject the permittee's appraisal and offer, the permittee
must pay the appraised damages to the County Circuit Clerk within three
business days of the non-acceptance. The funds will be placed in an
interest-bearing bank account until the issue is resolved.
If the owner rejects the permittee's appraisal, he/she may obtain
his/her own appraisal and provide it to the permittee within seven days
after receipt of the permittee's appraisal. The permittee must pay for
the owner's appraisal, up to the amount the permittee paid for his/her
own appraisal. If the owner's appraised damages are greater than the
permittee's and agreement is not reached, the permittee must pay the
owner the amount of the permittee's appraised damages and pay the
difference to the County Circuit Clerk. The funds will be placed in an
interest-bearing bank account until the issue is resolved.
Non-emergencies: The procedures are generally the same as those
described above for emergencies. However, the easement of necessity is
initially recognized only for the limited purpose of allowing the
permittee's appraiser to enter the property to conduct the appraisal,
which the permittee must provide within seven days instead of three.
After the required procedures and payments are satisfied, the permittee
may enter the property to abate the violation.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the State program.
Written Comments
Send your written or electronic comments to OSM at the address
given above. Your written comments should be specific, pertain only to
the issues proposed in this rulemaking, and include explanations in
support of your recommendations. We will not consider or respond to
your comments when developing the final rule if they are received after
the close of the comment period (see DATES). We will make every attempt
to log all comments into the administrative record, but comments
delivered to an address other than the Lexington Field Office may not
be logged in.
Electronic Comments
Please submit Internet comments as an ASCII or Word file avoiding
the use of special characters and any form of encryption. Please also
include ``Attn: SPATS No.KY-231-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
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their 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 review in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. July 5,
2002. If you are disabled and need special accommodations to attend a
public hearing, contact the person listed under FOR FURTHER INFORMATION
CONTACT. We will arrange the location and time of the hearing with
those persons requesting the hearing. If no one requests an opportunity
to speak, we will not hold a hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at the
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public hearing provide us with a written copy of his or her comments.
The public hearing will continue on the specified date until everyone
scheduled to speak has been given an opportunity to be heard. If you
are in the audience and have not been scheduled to speak and wish to do
so, you will be allowed to speak after those who have been scheduled.
We will end the hearing after everyone scheduled to speak and others
present in the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
are open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the administrative record.
IV. 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 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 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. Section 503(a)(7) requires
that State programs contain rules and regulations ``consistent with''
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
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. 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 governmental 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: May 15, 2002.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 02-15484 Filed 6-18-02; 8:45 am]
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