Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

Kentucky Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with certain exceptions, a proposed

amendment to the Kentucky regulatory program (hereinafter referred to

as the Kentucky program) under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). Kentucky proposed revisions to the

Kentucky Administrative Rules (KAR) at 405 KAR 7:080 pertaining to the

services provided and to the eligibility criteria for assistance under

its Small Operator Assistance Program (SOAP). The amendment is intended

to revise the Kentucky program to be consistent with changes in section

507 of SMCRA enacted by Congress as part of the Energy Policy Act of

1992, Public Law 102-486.

EFFECTIVE DATE: September 1, 1994.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director,

Lexington Field Office, Office of Surface Mining Reclamation and

Enforcement, 2675 Regency Rd, Lexington, Kentucky 40503. Telephone:

(606) 233-2896.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Kentucky Program

On May 18, 1982, the Secretary of the Interior conditionally

approved the Kentucky program. Background information on the Kentucky

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the May 18,

1982, Federal Register (47 FR 21404). Subsequent actions concerning

conditions of approval and program amendments can be found at 30 CFR

917.11, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

By letter dated April 26, 1994 (Administrative Record No. KY-1278),

Kentucky submitted a proposed amendment to its program pursuant to

SMCRA. Kentucky submitted the proposed amendment at its own initiative.

Kentucky proposed to revise ten sections of its regulations at 405 KAR

7:080 concerning small operator assistance. The proposed amendment

included revisions to the sections pertaining to program services,

eligibility for services, information requirements, and applicant

liability. It also contained editorial revisions and clarifications of

other sections.

OSM announced receipt of the proposed amendment in the May 20,

1994, Federal Register (59 FR 26471), and in the same document opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the proposed amendment. The public comment

period closed on June 20, 1994.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

Revisions not specifically discussed below concern nonsubstantive

wording changes, or cross-references and paragraph notations to reflect

organizational changes resulting from this amendment.

A. Revisions to Kentucky's Regulations That Are Substantively Identical

to the Corresponding Provisions of the Federal Regulations

------------------------------------------------------------------------

Federal

State regulations (405 Subject regulations (30

KAR 7:080) CFR part 795)

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Section 11(1)(d)......... Applicant liability...... 795.17(a)(2)

------------------------------------------------------------------------

Because the above proposed revision is identical in meaning to the

corresponding Federal regulation, the Director finds that Kentucky's

proposed rule is no less effective than the Federal rule.

B. Revisions to Kentucky's Regulations That Are Not Substantively

Identical to the Corresponding Provisions of the Federal Regulations

1. 405 KAR 7:080 Section 1. Scope

a. Kentucky proposes to amend the establishing provision and

redesignate it as new section 1(1). The revisions included adding the

word ``administrative'' before the word ``regulation,'' replacing the

word ``comprises'' with the word ``establishes,'' and adding the

citation ``authorized at KRS 350.456(2)(f)'' to the end of the

sentence. Section 1(1) now reads ``[t]his administrative regulation

establishes the small operator assistance program (Program) authorized

at KRS 350.465(2)(f).''

The proposed revisions merely clarify rather than alter this

provision of the existing approved regulation. Therefore, the Director

finds that 405 KAR 7:080 section 1(1), as revised, is no less effective

than the Federal regulation counterpart provision at 30 CFR 795.1.

b. Kentucky proposed to revise the governing provision and

redesignate it as new section 1(2). The revisions included removing the

reference to specific types of assistance to eligible small operators

in former sections 1(1)-1(3) and replacing them with reference to the

provisions of section 507(c) of SMCRA and the Federal regulations at 30

CFR Part 795. The deleted references included the determination of the

probable hydrologic consequences, the statement of physical and

chemical analysis of test borings of core samples, and other

requirements. New section 1(2) provides that ``[c]onsistent with 30 USC

1257(c) and 30 CFR Part 795, this administrative regulation shall

govern the procedures and criteria under which the cabinet shall

provide assistance to eligible small operators in meeting the

requirements of KRS Chapter 350 and Title 405, Chapters 7 through 24.''

Although the Federal counterpart provision at 30 CFR 795.1 still

refers to specific types of assistance to eligible small operators,

Kentucky incorporated these by reference into its regulation.

Therefore, the Director finds 405 KAR 7:080 section 1(2), as revised,

is no less effective than the Federal regulation counterpart provision

at 30 CFR 795.1.

c. Kentucky proposed to add the following interpretative provision

at new section 1(3).

This administrative regulation shall be construed to allow the

fullest possible extent of services consistent with Federal

requirements and available funds.

While there is no Federal counterpart to this provision, the

Director finds that the proposed addition is not inconsistent with the

requirements of SMCRA and the Federal regulations.

2. 405 KAR 7:080 Section 3. Source and Use of Funds

Kentucky proposes to revise 405 KAR 7:080 section 3 by removing the

following language.

Federal funds specifically authorized for this program to provide

the services specified in section 4 of this regulation shall not be

used to cover administrative costs.

Federal funds for States to administer a SOAP are controlled

through the grant application and review process at 30 CFR Part 735.

Moreover, Kentucky can only utilize funds as authorized by OSM through

the grant process which is controlled by oversight, and is subject to

verification by audit. Since 30 CFR 795.11 (a) prohibits the

expenditure of SOAP funds for administrative costs, OSM will not

authorize the use of SOAP funds for administrative expenses. Therefore,

the Director finds this proposed deletion will not render Kentucky's

regulations inconsistent with the intent of the Federal regulations.

3. 405 KAR 7:080 Section 4. Program Services

a. Kentucky proposes to revise the introductory text to read ``[t]o

the extent possible with available funds the cabinet shall provide

services in accordance with this section.''

Kentucky proposes to revise section 4(1) to read ``[f]or eligible

small operators who request assistance, the cabinet shall select and

pay a qualified laboratory to perform the following services in

accordance with section 8 of this administrative regulation.''

When read together, the amended requirements in the introductory

text and section 4(1) are substantively the same as the requirements in

the Federal regulations at 30 CFR 795.9(a), as amended May 31, 1994 (59

FR 28136). Therefore, the Director finds 405 KAR 7:080 section 4, as

amended above, is no less effective than the Federal regulations.

b. Kentucky proposed to revise section 4(1)(a), which authorizes

the determination of probable hydrologic consequences, by adding a

provision for performing engineering analyses and preparing designs

necessary for the determination. Kentucky proposed to revise section

4(1)(b) by adding a provision for performance of geologic drilling.

Kentucky proposed adding new section 4(1)(c) to authorize the

collection of cultural, historic, and archaeological resource

information and preparation of necessary reports and plans. Kentucky

proposed adding new section 4(1)(d) to authorize performance of

preblasting surveys. Kentucky proposed adding new section 4(1)(e) to

authorize collection of site specific information and preparation of

plans for the protection and enhancement of fish and wildlife and other

environmental values. Kentucky proposed adding new section 4(1)(f) to

authorize development of cross sections, maps and plans required for

permit applications.

The amended and new regulations at 405 KAR 7:080 section 4(1) (a)-

(f) contain provisions for program services substantively the same as

the provisions for program services contained in the Federal

regulations at 30 CFR 795.9(b) (1)-(6), as amended May 31, 1994 (59 FR

28136). Therefore, the Director finds that the revised regulations at

405 KAR 7:080 section 4(1) (a)-(f) are not less effective than the

Federal regulations.

c. Kentucky proposes to revise section 4(2) by adding the language

``[f]or eligible small operators who request assistance, the cabinet

may select and pay a qualified laboratory to'' at the beginning of the

section.

This addition was necessary because of the restructuring of section

4(1), and it does not alter the provisions of the existing approved

regulation. While there is no direct Federal counterpart regulation,

the Director finds that 405 KAR 7:080 section 4(2) is not inconsistent

with the requirements of SMCRA and the Federal regulations.

d. Kentucky proposed to add new sections 4(3) and 4(4) based on the

new provisions at section 507(c)(2) of SMCRA. Proposed section 4(3)

provides for informational services to ensure that eligible small

operators are aware of the assistance available under the SOAP.

Proposed section 4(4) obligates Kentucky to make training services

available under the SOAP concerning preparation of permit applications

and compliance with regulatory requirements.

These proposed additions are consistent with section 507(c)(2) of

SMCRA as amended by the Energy Policy Act of 1992. The Federal

regulations at 30 CFR 795.9 have not yet been revised to include

similar provisions. As indicated in the May 31, 1994, Federal Register

(59 FR 28136), OSM indicated that these requirements to provide notice

and training to eligible small operators will be subject of a separate

rulemaking. The Director finds Kentucky's proposal to be no less

stringent than section 507(c)(2) of SMCRA.

4. 405 KAR 7:080 Section 5. Eligibility for Assistance

Kentucky proposes to amend section 5(2) by deleting the existing

language which sets forth the period of consideration in which an

applicant may mine 300,000 tons or less, and adding language that would

limit the period of consideration to the 12 months immediately

following the date the permit is issued. 30 CFR 795.6 (2) states that

in order for an operator to be eligible, his/her ``probable total

annual production from all locations'' will not exceed 300,000 tons per

year with no limitations.

The addition of Kentucky's proposed language and the deletion of

the existing language at section 5(2) would not facilitate

consideration of the operators probable annual production, and it would

limit consideration to only one year immediately following the permit

issuance. In light of this, the Director finds that this proposed

language, coupled with the deletion of the existing language, is less

effective than the Federal rules at 30 CFR 795.6 (2). Therefore, this

proposed amendment is not approved.

5. 405 KAR 7:080 Section 8. Information Requirements

a. Kentucky proposed to amend section 8(1) to reflect the expanded

permitting assistance authorized by section 507(c) of SMCRA as amended

by the Energy Policy Act of 1992. This section now authorizes the

cabinet to determine for each applicant or group of applicants ``the

specific information, including the collection and analysis of field

information and the development of engineering and other technical

analyses, designs, and plans, that shall be provided under this

section.''

Kentucky proposed to amend sections 8(2)(a) and 8(2)(b) by adding

references to the specific sections of 405 KAR 8:030, 8:040, 16.120,

and 18:120 that correspond to the revised and new program services

authorized in 405 KAR 7:080 section 4(1) (a)-(f). The new referenced

sections are 405 KAR 8:030 and 8:040 section 11(2)--Cultural, historic,

and archaeological resources information; 405 KAR 8:030 and 8:040

section 19--Vegetation information; 405 KAR 8:030 and 8:040 section

20--Fish and wildlife resources information; 405 KAR 8:030 and 8:040

section 23--Maps and drawings; 405 KAR 8:030 and 8:040 section 36--Fish

and wildlife protection and enhancement; 405 KAR 16:120 section 2--

Preblasting survey; and 405 KAR 18:120 section 2--Preblasting survey.

As amended, 405 KAR 7:080 sections 8(1) and 8(2) satisfy the

provisions in 30 CFR 795.9(b) that the program administrator shall

determine the data requirements necessary to provide program services.

Therefore, the Director finds the amended provisions in 405 KAR 7:080

section 8 to be no less effective than the comparable provisions in the

Federal regulations at 30 CFR 795.9(b), as amended on May 31, 1994 (59

FR 28136).

b. 405 KAR 7:080 section 8(2) (a) and (b).

Kentucky also proposes to amend sections 8(2)(a) and 8(2)(b) by

deleting references to 405 KAR 8:030 and 8:040 sections 20(2)(c)--

Biological assessment of surface waters.

The references to 405 KAR 8:030 and 8:040 sections 20(2)(c) were

never approved as part of the Kentucky program because action had been

deferred on their addition in the April 15, 1992, Federal Register (57

FR 13043). Therefore, the Director finds the deletion of these

references will not render Kentucky's regulations less effective than

the Federal regulations. Since Kentucky has removed specific reference

to these sections from its regulations, the Director finds the April

15, 1992, deferred action on sections 8(2)(a) and 8(2)(b) moot.

6. Section 11. Applicant Liability

a. Kentucky proposes to amend section 11(1) by adding the word

``administrative'' before the word ``regulation.'' The Director finds

the addition of this word is not inconsistent with any requirement of

SMCRA or the Federal regulations. However, this regulation, as revised,

does not reflect the provisions in new section 507(h) of SMCRA. Section

507(h) requires that the costs of all services rendered pursuant to

section 507(c) (1) and (2) shall be reimbursed by SOAP recipients under

specified circumstances. The Kentucky regulation at 405 KAR 7:080

section 11(1) still requires reimbursement only for the costs of the

laboratory services performed. Since small operator assistance will no

longer be limited to laboratory services under 405 KAR 7:080 section 4,

the Director finds 405 KAR 7:080 section 11(1) is less stringent than

section 507(h) of SMCRA and is less effective than the Federal

regulations at 30 CFR 795.12(a), as amended May 31, 1994 (59 FR 28136).

Therefore, he is not approving the word ``laboratory'' in this

regulation to the extent it appears to require SOAP recipients to only

reimburse the cabinet for laboratory services performed. The Director

is requiring Kentucky to revise 405 KAR 7:080 section 11(1) to either

delete the word ``laboratory'' in the phrase ``The applicant shall

reimburse the cabinet for the costs of the laboratory services

performed * * * '' or to otherwise specify that the costs of all

services rendered pursuant to 405 KAR 7:080 shall be reimbursed by SOAP

recipients.

b. Kentucky proposed to amend section 11(1)(e) by revising the

liability period for reimbursement of funds for a permit acquired with

SOAP assistance whose rights are sold, transferred, or assigned.

Reimbursement shall be required if transfers, sales and assignments

occur ``during the twelve months immediately following the date the

permit is issued'' and the transferee's production exceeds the 300,000

ton annual production limit during ``the twelve (12) months immediately

following the effective date of the sale, transfer, or assignment.''

The amended Federal regulation at 30 CFR 795.12(a)(3) provides that

reimbursement shall be required if the ``transferee's total actual and

attributed production exceeds the 300,000 ton production limit during

the 12 months immediately following the date on which the permit was

originally issued.'' In the preamble of the May 31, 1994, Federal

Register (59 FR 28136), OSM discussed its reason for deciding to retain

the section on transferred liability. Removal of the section was

rejected ``[b]ecause of the potential for abuse and the fact that no

substantive reasons were provided to balance this concern and no

regulatory criteria were offered to distinguish between normal business

practices and those that could result in abuse of the SOAP.'' Kentucky

proposed a liability period provision which would further ensure

against the potential for abuse of the SOAP by small operators who act

as fronts for larger operators who would otherwise be ineligible for

assistance. Section 507(h) of SMCRA requires reimbursement ``during the

12 months immediately following the date on which the operator is

issued the surface coal mining and reclamation permit.'' Since

Kentucky's regulations at 405 KAR 8:010 section 22(6) require the

cabinet to reissue the original permit to the successor, setting the

liability period for reimbursement during the 12 months following the

reissuance date would not be inconsistent with SMCRA. Therefore, the

Director finds 405 KAR 7:080 section 11(1)(e), as amended, is not

inconsistent with section 507(h) of SMCRA and is no less effective than

the Federal regulations at 30 CFR 795.12(a)(3).

C. Revisions to Kentucky's Regulations With No Corresponding Federal

Provisions

1. 405 KAR 7:080 Necessity and Function

Kentucky proposed to revise the ``Necessity and Function'' section

of 405 KAR 7:080 by deleting the last two sentences of the paragraph

and adding a narrative summary of the purpose and the provisions of the

regulations at 405 KAR 7:080.

While there is no Federal regulation at 30 CFR Part 795 which

directly corresponds to the ``Necessity and Function'' section, the

Director finds the proposed revision is not inconsistent with SMCRA or

the Federal regulations.

2. 405 KAR 7:080 General

a. In proposed revisions to 405 KAR 7:080 section 1, section 4(1),

section 5(4), section 6(4) and (5), section 7(1)(b) and (3), section

8(2), section 10(2)(b), and section 11(1), Kentucky refers to

administrative regulations, rather than just regulations as currently

expressed in those provisions.

The Director finds that the proposed revisions add appropriate

clarity to the Kentucky regulations and are not inconsistent with any

requirement of SMCRA or the Federal regulations.

b. Kentucky proposed revisions to 405 KAR 7:080 section 6(8)(b);

section 7(1)(b); the title of section 8, section 8(1)-(3); and section

10(2)(a) 2 and 7 by replacing the word ``data'' with the word

``information.''

The Director finds that the words ``data'' and ``information'' are

interchangeable in the context of these provisions and that the

proposed revisions are not inconsistent with any requirement of SMCRA

or the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. No one requested an

opportunity to speak at a public hearing, so no hearing was held.

By letter dated June 22, 1994, the Kentucky Resources Council (KRC)

filed comments in response to the proposed rule published on May 20,

1994. The KRC commented that the proposed State regulatory changes,

with certain clarifications, appear to conform to section 507 of the

Act, as revised by the 1992 Amendments. Following are the three areas

the KRC believed were in need of clarification.

1. The first is that given the revisions to section 507(h) that

were made in the 1992 amendments, it does not appear to be permissible

to allow a recipient of SOAP funds to forego reimbursement based on a

State agency determination of ``good faith.'' The public interest in

assuring that SOAP funds are expended on those operations that truly

need such public assistance, militates against such a waiver of

reimbursement for those operations that do not qualify as small

operators.

The Director finds that the Kentucky regulation at 405 KAR 7:080

section 11(2) which contains the waiver of reimbursement obligation is

not being amended and that it is substantively the same as the Federal

regulation at 30 CFR 795.12(b).

2. The second area of clarification is in the proposed language of

section 4(3), which as written obligates the cabinet to provide

informational services concerning the general availability of

``assistance'' under the program. The 1992 amendments sought to

specifically require that the states make known the availability of

``the assistance available under this subsection,'' that being the

assistance in training operators in preparing permit applications and

regulatory compliance. In order to better track the Federal language,

subsection (3) should be a second sentence in existing (4) rather than

a separate subsection.

The Director finds that Kentucky correctly interpreted the

provisions in section 507(c)(2) of SMCRA. The cabinet is required to

ensure that qualified coal operators are aware of the assistance

available under paragraph (1) of subsection (c) of section 507 of

SMCRA.

3. The final area for which clarification is sought is under

section 4(1)(c). The Federal language authorizes expenditures of SOAP

funds for collection of archaeological and historical information

necessary to satisfy section 507(b)(13) and any other archaeological or

historical information required by the regulatory authority, and the

preparation of plans necessitated thereby. The State regulatory

language speaks in terms of ``necessary reports and plans'' but does

not clarify when a report or plan is deemed necessary. Missing is the

assurance that the scope of reimbursement includes any and all plans

that are necessitated because of the archaeological information that is

collected, i.e., those mitigation and avoidance plans that might be

required under the National Historic Preservation Act because of Phase

I data collection.

The Director finds that section 4(1) provides that the collection

of cultural, historic, and archaeological resources information and

preparation of necessary reports and plans would be performed in

accordance with 405 KAR 7:080 section 8. Since section 8 contains the

minimum requirements for information necessary to the objectives of

SOAP and includes at section 8(2)(a)1 and 8(2)(b)1, the cultural,

historic, and archaeological resources information regulations at 405

KAR 8:030 section 11(2) and 405 KAR 8:040 section 11(2) respectively,

the Director finds that Kentucky has adequate authority under its

regulations at 405 KAR 7:080 section 4 and section 8 to provide

assistance for plans that are necessitated because of Phase I data

collection.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Kentucky program. No Federal

agency comments were received.

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.).

None of the revisions that Kentucky proposed to make in this amendment

pertain to air or water quality standards. Therefore, OSM did not

request EPA's concurrence.

V. Director's Decision

Based on the above findings, the Director approves, with certain

exceptions, the proposed amendment as submitted by Kentucky on April

26, 1994.

With the requirement that Kentucky further revise its rules, the

Director does not approve, as discussed in finding No. B.6.a, the word

``laboratory'' in 405 KAR 7:080 section 11(1), concerning applicant

liability for reimbursement of the cost of services provided.

As discussed in finding No. B.4., the Director does not approve the

proposed language that would place a limitation on the period of

consideration of operator eligibility to the 12 months immediately

following the issuance of the permit. Additionally, the Director does

not approve the deletion of the existing language at 405 KAR 7:080

section 5.2.

In accordance with 30 CFR 732.17(f)(1), the Director is also taking

this opportunity to clarify, in the required amendment section at 30

CFR 917.16 that, within 60 days of the publication of this final rule,

Kentucky must either submit a proposed written amendment or a

description of an amendment to be proposed that meets the requirements

of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is

consistent with Kentucky's established administrative or legislative

procedures.

The Federal regulations at 30 CFR Part 917, codifying decisions

concerning the Kentucky program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In the

oversight of the Kentucky program, the Director will recognize only the

statutes, regulations and other materials approved by OSM, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by Kentucky of only such

provisions.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) 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

No environmental impact statement is required for this rule since

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 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

corresponding 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 corresponding Federal regulations.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface mining, Underground mining.

Dated: August 18, 1994.

Tim Dieringer,

Acting Assistant Director, Eastern Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations 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.

2. Section 917.15 is amended by adding paragraph (vv) to read as

follows:

Sec. 917.15 Approval of regulatory program amendments.

* * * * *

(vv) With the exception of the deletion and addition found in 405

KAR 7:080 section 5(2), and of the word ``laboratory'' in 405 KAR 7:080

section 11(1), concerning applicant liability for reimbursement of the

costs of services pursuant to the SOAP, revisions to the following

rules, as submitted to OSM on April 26, 1994, are approved effective

September 1, 1994.

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405 KAR 7:080 Small operator assistance

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Necessity and Function............. Introductory Text.

Section 1.......................... Scope.

Section 3.......................... Source and Use of Funds.

Section 4.......................... Program Services.

Section 5.......................... Eligibility for Assistance.

Section 6(4)-(5), (8)(b)........... Filing for Assistance.

Section 7(1)(b), (3)............... Application Approval and Notice.

Section 8.......................... Information Requirements.

Section 10(2) (a) and (b).......... Qualified Laboratories.

Section 11(1), (d)-(e)............. Applicant Liability with the

exception of the word

``laboratory'' in 11(1).

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3. Section 917.16 is amended by adding paragraph (l) to read as

follows:

Sec. 917.16 Required program amendments.

* * * * *

(l) By October 31, 1994, Kentucky shall either submit a proposed

amendment or a description of an amendment to be proposed, together

with a timetable for adoption of proposed revisions to 405 KAR 7:080

section 5(2) of the Kentucky regulations to delete the phrase ``the

twelve (12) months immediately following the date the permit is

issued'' and provide that an applicant establish that his or her

probable total attributed annual production from all locations on which

the operator is issued the surface coal mining and reclamation permit

will not exceed 300,000 tons; and to 405 KAR 7:080 section 11(1) of the

Kentucky Regulations to either delete the word ``laboratory'' in the

phrase ``The applicant shall reimburse the cabinet for the costs of the

laboratory services performed * * *'' or otherwise specify that the

costs of all services rendered pursuant to 405 KAR 7:080 shall be

reimbursed by SOAP recipients.

[FR Doc. 94-21582 Filed 8-31-94; 8:45 am]

BILLING CODE 4310-05-M