[Federal Register Volume 70, Number 84 (Tuesday, May 3, 2005)]
[Rules and Regulations]
[Pages 22795-22797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8731]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[KY-248-FOR]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are approving an amendment to the Kentucky regulatory
program (the ``Kentucky program'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). Kentucky submitted examples
of common husbandry practices in response to a required amendment.
DATES: Effective Date: May 3, 2005.
FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone: (859)
260-8400. Telefax number: (859) 260-8410.
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Submission of the Proposed 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 21434). 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. Submission of the Proposed Amendment
By letter dated July 29, 2004, Kentucky sent us information
pertaining to its program ([KY-248-FOR], administrative record No. KY-
1634) under SMCRA (30 U.S.C. 1201 et seq.) in response to a required
amendment at 30 CFR 917.16(i). The required amendment resulted from
OSM's decision on June 9, 1993, to not approve proposed changes to 405
KAR (Kentucky Administrative Regulations) 16/18:200 Sections 1(7)(a),
(7)(a)1 through 5, and 1(7)(d) that were submitted to OSM on June 28,
1991 (58 FR 32283). The finding stated, in part, that Kentucky (unlike
other States) had not submitted any administrative record information
to demonstrate that its proposed practices were normal husbandry
practices within Kentucky. In its submission letter, Kentucky stated,
in part, that its administrative regulations at 405 KAR 16/18:200
Sections 1(7)(a)1 through 5, and Sections 1(7)(b) and (d) ``provide
general direction on common remedial practices that will not extend the
bond liability period'' and ``While these regulations establish a basic
level of remedial activity that may occur, they do not identify many of
the husbandry practices that may be commonly used in this region.''
Kentucky included guidance documents from the University of Kentucky
College of Agriculture Cooperative Extension Service that identify the
common husbandry practices that Kentucky would allow, subject to the
limitations in 405 KAR 16:200/18:200 Section 1(7)(a) and (d). Kentucky
also submitted information regarding similar husbandry practices
approved and used in Tennessee, Ohio and Virginia. Finally, Kentucky
provided examples of common practices that would be encountered on
lands in Kentucky and would not restart or extend the bond liability
period. The examples pertained to the following land uses: hayland,
pastureland, forestland, commercial forestry, fish and wildlife,
commercial, industrial, residential or recreational. We note that some
of these examples do not pertain to the husbandry practices listed in
405 KAR 16/18:200 Section 1 (7)(a) and (d) so they are not considered
in this amendment.
We announced receipt of the proposed amendment in the September 14,
2004, Federal Register (69 FR 55373), and in the same document invited
public comment and provided an opportunity for a public hearing on the
adequacy of the proposed amendment. The public comment period closed on
October 14, 2004. We received one comment from the U.S. Fish and
Wildlife Service.
III. OSM's Findings
Following is the finding we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. The
regulation at 405 KAR 16/18:200 Section 1(7)(a) allows quarter acres or
less of discrete areas to be reseeded without restarting the
responsibility period if the areas meet one of the five exemptions and
the total of these areas is no more than three percent of the permit
acreage. The Federal rules at 30 CFR part 816 and 817.116(c)(4) allow
the performance of normal husbandry practices during the period of
responsibility, without restarting that period, if the State and OSM
approve such practices and such practices can be expected to continue
as part of the postmining land use or if discontinuance of the practice
after the liability period expires will not reduce the probability of
permanent revegetation success. We find that the three percent overall
size limitation will not reduce the probability of permanent
revegetation success because the Federal rules at 30 CFR part 816 and
817.116(a)(2) provide that ground cover,
[[Page 22796]]
production or stocking shall be considered equal to the approved
success standard when they are not less than 90 percent of the success
standard. Thus, the three percent limitation will still allow the area
to meet the 90 percent success standard of part 816 and 817.116(a)(2).
The size limitation of a specific area was addressed in our finding
regarding Virginia's husbandry practices (59 FR 49195), where we said
that the reseeding of large blocks of barren areas representing failed
reclamation would be augmentative. The Federal rules at part 816 and
817.116(c)(4) prohibit husbandry practices to be augmentative.
Kentucky's limit of a quarter acre for discrete areas would not be
considered large blocks of barren areas. Thus, Kentucky's
administrative record information is sufficient to support these
practices as normal husbandry. Accordingly, we find 405 KAR 16/18:200
Section 1(7)(a) no less effective than the Federal rules.
405 KAR 16/18:200 section 1(7)(d) states that irrigating, reliming,
and refertilizing pastureland; reseeding cropland; and renovating
pastureland by overseeding after Phase II bond release and after three
years from the initial seeding shall be considered normal husbandry
practices. These practices will not restart the liability period if the
amount and frequency of these practices do not exceed normal
agricultural practices on unmined land in the region. The Federal rules
at 30 CFR part 816 and 817.116(c)(4) permit selective husbandry
practices, excluding augmented seeding, fertilization, or irrigation,
provided the regulatory authority obtains prior approval from OSM that
the practices are normal husbandry practices, without extending the
period of responsibility for revegetation success and bond liability.
Kentucky has provided guidance documents it employs to identify common
husbandry practices. The documents are published by the Kentucky
College of Agriculture Cooperative Extension Service and are:
Renovating Hay and Pasture Fields, Growing Red Clover in Kentucky and
Establishing Forage Crops. The administrative record information
submitted by Kentucky demonstrates that its practices are the usual or
expected state, form, amount, or degree of management performed
habitually to prevent exploitation, destruction, or neglect of the
resource and maintain a prescribed level of use or productivity of
similar unmined lands. We find that these documents establish an
adequate administrative record to support the normal husbandry
practices listed in section 1(7)(d) and that 405 KAR 16/18:200 Section
1(7)(d) are no less effective than the Federal rules and can be
approved.
It should be noted that 405 KAR 16/18:200 section 1(7)(b) was
previously approved and therefore not part of this amendment (see 63 FR
41423, August 4, 1998).
IV. Summary and Disposition of Comments
Public Comments
We solicited public comments on September 14, 2004, and provided an
opportunity for a public hearing on the amendment. Because no one
requested an opportunity to speak, a hearing was not held.
Federal Agency Comments
According to 30 CFR 732.17(h)(11)(i), on September 30, 2004, we
solicited comments on the proposed amendment submitted on May 14, 2004,
from various Federal agencies with an actual or potential interest in
the Kentucky program (administrative record No. KY-1634). We received
one response from the U.S. Fish and Wildlife Service, who concurred
without comment.
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.).
Because the provisions of this amendment do not relate to air or water
quality standards, we did not request EPA's concurrence.
V. OSM's Decision
Based on the above finding, we are approving 405 KAR 16:200 Section
1(7)(a) and 1(7)(d) and 405 KAR 18:200 Section 1(7)(a) and 1(7)(d)
which were previously not approved. We are also removing the required
amendment at 30 CFR 917.16(i) because Kentucky has submitted the
administrative record information necessary to demonstrate that its
proposed practices are normal husbandry practices within Kentucky as
discussed in Section III above.
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 Kentucky's program demonstrate that it 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 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, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
[[Page 22797]]
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.
The basis for this determination is our decision on a State regulatory
program and does not involve a Federal regulation involving Indian
lands.
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 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: March 17, 2005.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
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.
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2. Section 917.15 is amended in the table by adding a new entry in
chronological order by the ``Date of Final Publication'' to read as
follows:
Sec. 917.15 Approval of Kentucky regulatory program amendments.
* * * * *
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Original amendment Date of final
submission date publication Citation/description
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* * * * * * *
June 28, 1991 with record May 3, 2005......... 405 KAR 16:200
material submitted July 29, Section 1(7)(a) and
2004. (7)(d) and 405 KAR
18:200 Section 1
(7)(a) and (7)(d).
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Sec. 917.16 Required regulatory program amendments.
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3. Section 917.16 is amended by removing and reserving paragraph (i).
[FR Doc. 05-8731 Filed 5-2-05; 8:45 am]
BILLING CODE 4310-05-P