[Federal Register Volume 68, Number 250 (Wednesday, December 31, 2003)]
[Rules and Regulations]
[Pages 75423-75425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-32107]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-245-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; removal of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are announcing the removal of a required amendment to the
Kentucky regulatory program (the ``Kentucky program''). The Kentucky
program was established under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act) and authorizes Kentucky to
regulate surface coal mining and reclamation operations in Kentucky.
EFFECTIVE DATE: December 31, 2003.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Field Office
Director; Telephone: (859) 260-8400; E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Purpose of the Rule
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 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. Purpose of the Rule
The required amendment at 30 CFR 917.16(k) reads as follows:
By October 1, 1993, Kentucky shall submit to OSM either proposed
amendments or a schedule for the submission of proposed amendments
to Kentucky Administrative Regulations (KAR) to require that the
assessment Conference Officer's Report mentioned in 405 KAR 7:092
Section 4(5) be served in a manner consistent with 405 KAR 7:091
Section 5, and to specify that the time allowed under 405 KAR 7:092
Section 6(1)(b) to file a petition for administrative review of the
proposed penalty set forth in the Conference Officer's Report does
not begin to run until service is obtained in this manner.
On March 28, 2003, OSM forwarded a letter to Kentucky requesting
that the required amendment at 30 CFR 917.16(k) be addressed by
forwarding to OSM a policy statement that established its procedures on
mailing of Conference Officer's Reports and the date that begins the
administrative petition process. In response to this request we
received a letter from the Kentucky Natural Resources and Environmental
Protection Cabinet, Office of Administrative Hearings, dated April 3,
2003, requesting that its policy of requiring all Conference Officer's
Reports be sent by certified mail be considered by us as fulfilling the
requirements of the above-mentioned amendment (Administrative Record
No. KY-1576). Included in the letter was a copy of a memorandum, dated
April 2, 2002, sent from the Chief Hearing Officer to the Penalty
Assessments Coordinator and the Assessment Conference Officer. This
memorandum reminded its recipients that, according to policy, all
Conference Officer's Reports should be mailed via certified mail,
return receipt requested, and that, in calculating the time for the
filing of an administrative petition, the beginning date should be the
date of service of the Conference Officer's Report, rather than the
mailing date. The memorandum acknowledged that Kentucky's regulation,
which allows service by regular mail, had been found by OSM to be less
effective than a corresponding Federal regulation (Administrative
Record No. KY-1605).
Based on the commitments included in the above-referenced letter
and accompanying memorandum, we announced our proposal to remove this
required amendment on October 3, 2003, in the Federal Register (68 FR
57398). In the same notice we opened the public comment period and
provided an opportunity for a public hearing or meeting on whether the
policy letter discussed above meets the requirements of the required
amendment, thereby eliminating the need for a revision to the Kentucky
regulatory program. We did not hold a public hearing or meeting because
no one requested one. The public comment period closed on November 3,
2003. We received comments from two Federal agencies (U.S. Department
of the Interior, Fish and Wildlife Service and the U.S. Army Corps of
Engineers). We also received comments from the Kentucky Resources
Council, Inc.
III. OSM's Findings
In our August 6, 1993, decision we determined that the required
amendment was necessary because we were concerned that 405 KAR 7:092
section 4(5) was less effective than its Federal counterpart found at
30 CFR 845.18 because of the way in which Conference Officer's Reports
were administratively handled (58 FR 42001, 42006). Although Kentucky
has not amended its regulations in response to this required amendment,
Kentucky's policy has been to serve all Conference Officer's Reports by
certified mail and to begin the period for filing an administrative
petition from the date of service of the report (Administrative Record
No. KY-1605). Our analysis of this policy indicates that it clarifies
the language of the Kentucky regulation, which requires service by
``mail'', without specifying whether the service must be made by
``certified'' or ``regular'' mail. 405 KAR 7:092, section 4(5). In
addition, Kentucky's policy of starting the appeal period from the date
of service indicates that the State interprets its regulation at 405
KAR 7:092, section 6(1)(b), which begins the appeal period on the
mailing date, in a manner consistent with its policy, and with the
Federal regulations. In other words, it is apparent that Kentucky
interprets the term ``mailing'' to include service, i.e., receipt, of
the Conference Officer's Report. Furthermore, the record is devoid of
any indication that Kentucky has failed to follow this policy in the
last decade. With these policy clarifications now in place, these
aspects of the Kentucky program clearly meet the requirements of, and
are therefore consistent with, the Federal regulations at 30 CFR 845.17
and 845.18.
We do recognize that this determination is being made based on
program implementation based on a State policy, rather than via a
statutory
[[Page 75424]]
or regulatory change. Should we find that in the future the State's
actions concerning Conference Officer's Reports are no longer
consistent with the requirements of 30 CFR 845.17 and 845.18, we will
take the necessary action at that time to bring their program into
compliance with this decision.
Therefore, we have determined that the required amendment at 30 CFR
917.16(k) is no longer needed and will be removed.
IV. Summary and Disposition of Comments
Public Comments
The Kentucky Citizens Coal Law Project (KCCLP), a division of the
Kentucky Resources Council, submitted comments dated October 28, 2003
(Administrative Record No. KY-1603). These comments primarily relate to
two specific concerns which we address below:
(1) KCCLP does not believe the Kentucky policy resolves the
conflict between State and Federal regulations concerning the timing
for appeal of the Conference Officer's Report.
As we discussed in the above finding, Kentucky has stated, in its
policy, that the date for filing an administrative petition begins on
the date of service. Therefore, we have determined that the
implementation of this program is consistent with the Federal
requirements. If we subsequently find that Kentucky is no longer able
or willing to enforce its program in a manner consistent with Federal
regulations, we will take appropriate action to bring the program back
into compliance.
(2) KCCLP does not believe that a Kentucky policy of serving
Conference Officer's Reports by certified mail is as effective as its
Federal counterpart and violates State and Federal law. This comment
appears to rest with both 30 U.S.C. 1253(1)-(7), which requires that
State laws and regulations be consistent, and in accordance, with
Federal requirements, and Kentucky Revised Statutes (KRS) 13A.130,
which prohibits agencies in Kentucky from adopting or enforcing any
policy that modifies or alters a regulation.
We agree with the commenter that 30 U.S.C. 1253(a)(1)-(7) require
laws and regulations consistent with and in accordance with Federal
requirements. We also agree with the commenter on what the Federal
requirement is regarding service of Conference Officer Reports.
However, we have determined that Kentucky's implementation of its
program is consistent with the Federal requirements. The State
regulation at issue, 405 KAR 7:092, section 4(5), sets forth that
``[t]he Conference Officer's Report shall be promptly served by mail *
* *'' (Emphasis added.) The regulation does not specify, however, the
type of mail delivery required. For example, it does not require the
report to be served by ``regular'' mail. As such, a policy specifying
that service be accomplished by ``certified'' mail is not inconsistent
with the State regulatory requirement. Further, since documentation of
receipt is an integral part of the certified mail process, a policy
that begins the period for appeal upon receipt of the certified mail is
not inconsistent with the State regulations even though it may not be
expressly mandated by that regulation. Kentucky has been operating in a
manner consistent with this policy and the Federal requirements for the
past decade. Therefore that policy constitutes ample grounds for
removing the required amendment. Nevertheless, if in the future we
determine that Kentucky is not implementing its program in a manner
consistent with the Federal requirements we will revisit this issue and
take whatever action is necessary to ensure the State's administrative
handling of Conference Officer's Reports occurs in accordance with
Federal requirements.
Regarding the State's law, we believe that any step taken by OSM to
analyze and interpret KRS 13A.130 in a manner inconsistent with
Kentucky's documented policy and practice in applying that law is
clearly outside the scope of our jurisdiction. We believe it is within
the discretion of the Kentucky Natural Resources and Environmental
Protection Cabinet to determine that it is complying with Kentucky's
statutory limits in interpreting its regulation in the above-described
way.
Federal Agency Comments
The U.S. Department of the Interior, Fish and Wildlife Service
submitted a letter dated October 29, 2003 (Administrative Record No.
KY-1605), in which they indicated it has no substantive comments
regarding the removal of the required amendment.
The U.S. Army Corps of Engineers submitted a statement dated
October 31, 2003 (Administrative Record No. KY-1606), in which it
indicated it had no comments on the proposed rule.
V. OSM's Decision
Based on the above findings we have determined that the required
amendment at 30 CFR 917.16(k) is no longer needed and will be removed.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule is a technical amendment and does not have takings
implications.
Executive Order 12866--Regulatory Planning and Review
This rule is exempt 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.
Executive Order 13132--Federalism
This rule is a technical amendment and does not have federalism
implications.
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 the Federal government and Indian tribes.
This determination is based on the fact that the Kentucky program does
not regulate coal exploration and surface coal mining and reclamation
operations on Indian lands. Therefore, the Kentucky program has no
effect on federally-recognized 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 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 will not 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
[[Page 75425]]
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 rule is a technical amendment that does not impose any additional
requirements on small entities.
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 stated
above, 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.
Unfunded Mandates
This rule is a technical amendment and 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.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Dated: December 8, 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 (k).
[FR Doc. 03-32107 Filed 12-30-03; 8:45 am]
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