Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-208]

Kentucky Regulatory Program

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

Interior.

ACTION: Proposed rule; reopening and extension of public comment period

on proposed amendment.

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SUMMARY: OSM is announcing receipt of revisions pertaining to a

previously proposed amendment to the Kentucky regulatory program

(hereinafter, the ``Kentucky program'') under the Surface Mining

Control and Reclamation Act of 1977 (SMCRA). The revisions for

Kentucky's proposed rules pertain to documents, assessment of civil

penalties, and revegetation for surface and underground mining. This

amendment is intended to revise the Kentucky program to be consistent

with the corresponding Federal regulations.

DATES: Written comments must be received by 4:00 p.m., E.D.T., May 2,

1995.

ADDRESSES: Written comments should be mailed or hand delivered to Mr.

William J. Kovacic at the address listed below.

Copies of the Kentucky program, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Lexington Field Office.

Mr. William J. Kovacic, Lexington Field Office, Office of Surface

Mining Reclamation and Enforcement, 2675 Regency Road, Lexington,

Kentucky 40503, Telephone: (606) 233-2896'

Department for Surface Mining Reclamation and Enforcement, #2 Hudson

Hollow Complex, Frankfort, Kentucky 40601, Telephone: (502) 564-6940.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Director, Lexington Field Office, Telephone: (606)

233-2896.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

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

approved the Kentucky program. General background information on the

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

of comments, and the conditions of approval of the Kentucky program can

be found in the May 18, 1982, Federal Register (47 FR 21404).

Subsequent actions concerning Kentucky's program and program amendments

can be found at 30 CFR 917.11, 917.15, 917.16, and 917.17.

II. Description of the Proposed Amendment

By letter dated July 19, 1994, Kentucky submitted a proposed

amendment to its program pursuant to SMCRA (Administrative Record No.

1304). Kentucky submitted the proposed amendment at its own initiative.

The provisions of the Kentucky Administration Regulations (KAR)

Kentucky proposed to amend were: 405 KAR 7:015--Documents Incorporated

by Reference, 405 KAR 7:095--Assessment of Civil Penalties, 405 KAR

10:010--General Requirements for Performance Bond and Liability

Insurance, 405 KAR 16:020--Contemporaneous Reclamation, 405 KAR

16:200--Revegetation for Surface Coal Mining, and 405 KAR 18:200--

Revegetation for Underground Mining Operations.

OSM announced receipt of the proposed amendment in the August 9,

1994, Federal Register (59 FR 40503), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (Administrative Record No. 1322).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on September 8, 1994.

On March 2, 1995, Kentucky submitted additional revisions to 405

KAR 7:095--Assessment of Civil Penalties, and 405 KAR 16:200 and

18:200--Revegetation (Administrative Record No. 1347). 405 KAR 7:095

section 5(2) is proposed to be revised to clarify that the penalty

which can be assessed under this section is in addition to the civil

penalty which can be assessed under section 5(1), and to add section 7

which incorporates by reference Kentucky's January 6, 1995,

``Procedures for Assessment of Civil Penalties''. Several revisions

were made to proposed 405 KAR 16:200 and 18:200--Revegetation. Proposed

section 1(4) is being revised to clarify that this section does not

negate the requirement at 405 KAR 16:180 and 18:180 section 3(2) that

``where cropland is intended to be the postmining land use, and where

appropriate for wildlife and crop-management practices, the permittee

shall intersperse the fields with tree, hedges, or fence rows

throughout the harvested area to break up large blocks of monoculture

and to diversify habitat types for birds and other animals.'' Proposed

section 5(2)(b)2 is being revised to specifically identify the

``Kentucky Agricultural Statistics'' documents being relied upon

(except for prime farmland) for average county yields of row crops.

Proposed section 6 is being revised to reduce the stocking rates for

trees from 450 to 300 plants per acre, and to require all permit

applications submitted after February 22, 1995, which propose to plant

trees and shrubs for wildlife habitat, to use species listed in

Appendix A of New [[Page 19194]] Technical Reclamation Memorandum #21

and stocking densities set in section 6(2)(b)1, or optionally to use

species and stocking densities recommended specifically for the permit

area by the Kentucky Department of Fish and Wildlife Resources.

Sections 9(3)(c) and 9(6), regarding use of productivity test areas

rather than statistical evaluation of productivity, are being deleted.

III. Public Comment Procedures

Written Comments

OSM is reopening the comment period on the proposed Kentucky

program amendment to provide the public an opportunity to reconsider

the adequacy of the proposed amendment in light of the additional

materials submitted. In accordance with the provisions of 30 CFR

732.17(h), OSM is seeking comments on whether the proposed amendment

satisfies the applicable program approval criteria of 30 CFR 732.15. If

the amendment is deemed adequate, it will become part of the Kentucky

program.

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Lexington Field Office will

not necessarily be considered in the final rulemaking or included in

the administrative record.

IV. 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 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 12550) 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 CRR 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 that 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. 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 counterpart Federal regulations.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface mining, Underground mining.

Dated: April 10, 1995.

Richard J. Seibel,

Acting Assistant Director, Eastern Support Center.

[FR Doc. 95-9388 Filed 4-14-95; 8:45 am]

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