02-14076. Kentucky Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; technical amendment.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing the removal of two instructions to the State of Kentucky pertaining to required amendments 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. We are removing the instructions because the actions required by our instructions were previously satisfied and nothing further is required by the state.

EFFECTIVE DATE:

June 7, 2002.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Field Office Director; Telephone: [phone]; E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

II. Purpose of the Rule

III. 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

During the course of implementing SMCRA, we occasionally issue new regulations that may result in the state having to amend its approved program. A state on its own initiative may also amend its approved program. When either situation occurs, we review the amendment submitted by the state and determine if it meets the requirements of SMCRA. When it does, it is approved and when it does not, it is not approved and instructions are issued to the state on new amendments that are required. These instructions are codified in our regulations at 30 CFR 917.16 for the Kentucky program. The instructions should be removed once the requirement is satisfied either by the submission and approval of a new amendment, or by a change in circumstances such as the issuance of new regulations by OSM or the enactment of new legislation. Occasionally, we neglect to remove the instruction and by this rulemaking will remove instructions that are no longer required for the reasons that follow.

At 30 CFR 917.16(d)(1), Kentucky was required to remove the word “abated” or otherwise clarify that the rule at 405 Kentucky Administrative Regulations (KAR)7:090 section 3(4)(a) applies to abated and unabated violations to comply with the Federal regulations at 30 CFR 845.20. The Federal regulations require any person who chooses not to contest the fact of a violation (whether abated or not) or the assessment to pay the assessment in full within 30 days of the date the final assessment order was mailed. Kentucky has since made numerous changes to its hearing regulations, including the removal of 405 KAR 7:090. We approved the changes on August 6, 1993 (58 FR 42601). Kentucky's current regulations at 405 KAR 7:092 section 3(4)(a) state, in part, that if a person chooses not to contest the assessment, a finding will be made that the person has waived all rights to an administrative hearing, and the fact of the violation is deemed admitted. Because Kentucky no longer refers to “abated” violations, the requirement codified at 30 CFR 917.16(d)(1) is hereby satisfied and the instruction should be removed. 30 CFR 917.16(f) required a program change to 405 KAR 8:010 sections 5(1)(c) and (d) to require that information required by sections 2 and 3 of 405 KAR 8:030 and 8:040 be submitted on any format prescribed by OSM, as well as any format prescribed by the Cabinet. On December 19, 2000 (65 FR 79582), we removed the requirement that states must submit information on forms approved by OSM. The requirement codified at 30 CFR 917.16(f) is no longer necessary and the instruction should have been removed.

III. Procedural Determinations

Administrative Procedure Act

This final rule has been issued without prior public notice or opportunity for public comment. The Administrative Procedure Act (APA) (5 U.S.C. 553) provides an exception to the notice and comment procedures when an agency finds that there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary or contrary to the public interest. We have determined that under 5 U.S.C. 553(b)(3)(B), good cause exists for dispensing with notice of proposed rulemaking and an opportunity for public comment. This rule is technical in nature and non-controversial. It merely removes from our regulations instructions to the state pertaining to amendments to the Kentucky program that were required. As previously mentioned, Kentucky satisfied one requirement, and the Federal regulations no longer contain the other. The instructions in our regulations should, therefore, be removed. For these same reasons, we believe there is good cause under 5 U.S.C. 553(d)(3) of the APA to have the rule become effective on a date that is less than 30 days after the date of publication in the Federal Register.

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 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 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: May 8, 2002.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 917 is amended as set forth below:

PART 917—KENTUCKY

1. The authority citation for part 917 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

§ 917.16

[Amended]

2. Section 917.16 is amended by removing and reserving paragraphs (d)(1) and(f).