Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[KY-208-FOR]

Kentucky Regulatory Program

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

Interior.

ACTION: Proposed rules; reopening of comment period.

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SUMMARY: OSM is reopening the public comment period on a proposed

amendment to the Kentucky permanent regulatory program (hereinafter

referred to as the ``Kentucky program'') under the Surface Mining

Control and Reclamation Act of 1977 (SMCRA). The proposed amendment

consists of revisions to sections of the Kentucky Administrative

Regulations (KAR) dealing with the assessment of civil penalties. The

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.]

November 12, 1996.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to William J. Kovacic, Field Office

Director, at the address listed below.

Copies of the Kentucky program, the proposed amendment, a listing

of any scheduled public hearings, 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.

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

Mining Reclamation and Enforcement, 2675 Regency Road, Lexington,

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

Department of Surface Mining Reclamation, 2 Hudson Hollow Complex,

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

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Field Office 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. 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, 917.15, 197.16, and 917.17.

II. Description of the Proposed Amendment

By letter dated July 19, 1994 (Administrative Record No. KY-1304),

Kentucky submitted a proposed amendment to its program pursuant to

SMCRA at its own initiative. The proposed amendments were announced in

the August 9, 1994, Federal Register (59 FR 40503). By letter dated

January 11, 1995 (Administrative Record No. KY-1331), Kentucky

resubmitted a proposed amendment that completed its regulation

promulgation process. OSM reopened the public comment period in the

February 17, 1995, Federal Register (60 FR 9314). By letter dated March

2, 1995 (Administrative Record KY-1347), Kentucky submitted additional

revisions to the proposed amendment pertaining civil penalty assessment

and revegetation. Based on the revised information, OSM reopened the

comment period in the April 17, 1995, Federal Register (60 FR 19193).

During its review of the proposed revisions, OSM noted that Kentucky

did not submit the January 6, 1995, ``Procedures for Assessment of

Civil Penalties'' incorporated by reference in the March 2, 1995,

submission. Because the document was not made part of the

administrative record, it was not subject

[[Page 55248]]

to public comment. OSM is, therefore, reopening the comment period at

this time.

``Procedures for Assessment of Civil Penalties'' replaces the June

15, 1994, version and includes a general description of the assessment

process, an explanation of the assessment factors, the assessment

mechanism, and the application of the assessment factors to specific

violations. Specific changes include the following. Chapter I: at

section B(1), the provision that a penalty may be assessed if the

violation is noncorrectable is deleted. At section D(1), the language

is revised to require that the penalty for a cessation order issued for

failure to abate be assessed pursuant to 405 KAR 7:092, section 13(2).

At section D(2), the language is revised to require that the penalty

for an imminent danger cessation order be issued pursuant to 405 KAR

7:092 section 13(1). The assessment shall be based on the four criteria

in 405 KAR 7:095 section 3. Additional penalties shall be assessed in

the event a failure to abate cessation order is issued. At section

D(3), the language is revised to require that the penalty for an

illegal mining cessation order be assessed pursuant to 405 KAR 7:092

section 13(3). Chapter IV: at section B(5)b, the ``Topsoil Affected''

damage point chart is revised.

III. Public Comment Procedures

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. Specifically,

OSM is seeking comments on the revision to the State's regulation that

was submitted on July 19, 1994 (Administration Record No. KY-1304),

with the subsequent revisions and additions as noted above. Comments

should address 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

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 Appalachian Regional

Coordinating Center 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 12988

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12988 (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

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.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 16, 1996.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 96-27404 Filed 10-24-96; 8:45 am]

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