Kansas Regulatory Program and Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 916

[SPATS No. KS-017-FOR]

Kansas Regulatory Program and Abandoned Mine Land Reclamation

Plan

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Kansas regulatory

program and abandoned mine land reclamation plan (hereinafter referred

to as the ``Kansas program'') under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). Kansas proposed revisions to and

additions of regulations pertaining to communications, petitions to

initiate rulemaking, notice of citizen suits, preparation and

submission of reports by the permittee, definitions, permit

applications, administrative hearing procedures, civil penalties,

permit review, permit revision, permit renewals, permit transfers,

assignments, and sales, permit conditions, permit suspension or

revocation, termination of jurisdiction, exemption for coal extraction

incident to government-financed highway or other construction,

exemption for coal extraction incidental to the extraction of other

minerals, coal exploration, bonding procedures, performance standards,

revegetation, interim performance standards, underground mining, small

operator assistance program, lands unsuitable for surface mining,

training, certification, and responsibilities of blasters and

operators, employee financial interests, inspection and enforcement,

eligible lands and water, reclamation project evaluation, consent to

entry, liens, appraisals, contractor responsibility, exclusion of

certain noncoal reclamation sites, and abandoned mine land reclamation

plan reports. The amendment is intended to revise the Kansas program to

be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: March 3, 1998.

FOR FURTHER INFORMATION CONTACT:

Russell W. Frum, Mid-Continent Regional Coordinating Center, Office of

Surface Mining, Alton Federal Building, 501 Belle Street, Alton,

Illinois 62002, Telephone: (618) 463-6460.

SUPPLEMENTARY INFORMATION:

I. Background on the Kansas 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 Kansas Program

The Secretary of the Interior conditionally approved the Kansas

regulatory program on January 21, 1981, and the Kansas abandoned mine

land reclamation plan on February 1, 1982. General background

information on the Kansas regulatory program and the Kansas abandoned

mine land reclamation plan, including the Secretary's findings, the

disposition of comments, and the conditions of approval can be found in

the January 21, 1981, Federal Register (46 FR 5892) and the February 1,

1982, Federal Register (47 FR 4513), respectively. Subsequent actions

concerning Kansas' program and program amendments can be found at 30

CFR 916.10, 916.12, 916.15, 916.16, 916.20, and 916.25.

II. Submission of the Proposed Amendment

By letter dated May 7, 1997 (Administrative Record No. KS-615),

Kansas submitted a proposed amendment to its program pursuant to SMCRA.

Kansas submitted the proposed amendment at its own initiative.

OSM announced receipt of the proposed amendment in the June 4,

1997, Federal Register (62 FR 30535) and in the same document opened

the public comment period and provided an opportunity for a public

hearing or meeting on the adequacy of the proposed amendment. The

public comment period closed on July 7, 1997. Because no one requested

a public hearing or meeting, none was held.

During its review of the amendment, OSM identified concerns

relating to K.A.R. 47-2-53, definition for regulatory authority; K.A.R.

47-2-75(6)(A), definition for director; K.A.R. 47-3-42(a)(49)(B) and

(a)(49)(E), procedures for challenging ownership or control links shown

in AVS; K.A.R. 47-3-42(a)(50)(E), standards for challenging ownership

or control links and the status of violations; K.A.R. 47-5-5a(c)(4)(D),

review of waiver determination; K.A.R. 47-5-5a(c)(6)(C)(i) and

(c)(6)(E), summary disposition; K.A.R. 47-6-4(c), permit transfers,

assignments, and sales; K.A.R. 47-6-8(b), termination of jurisdiction;

K.A.R. 47-6-9(b)(3), exemption for coal extraction incident to

government-financed highway or other construction; K.A.R. 47-6-

10(b)(4), exemption for coal extraction incidental to the extraction of

other minerals; K.A.R. 47-7-2(b)(6) and (b)(8), coal exploration;

K.A.R. 47-8-9(a)(1) and (b)(8), bonding procedures; K.A.R. 47-9-1(c),

performance standards--surface mining activates; K.A.R. 47-9-1(c)(17)

and (e)(17), use of explosives: general requirements; K.A.R. 47-9-

1(c)(35), backfilling and grading: time and distance requirements;

K.A.R. 47-9-1(j)(9), substitution of Kansas terms for Federal terms in

30 CFR Parts 816 and 817; K.A.R. 47-16-1, eligible lands and water;

K.A.R. 47-16-6(d), liens; K.A.R. 47-16-9(a), contractor responsibility;

K.A.R. 47-16-10(b)(1), exclusion of certain noncoal reclamation sites;

and K.A.R. 47-16-11 (a)(2)(A) and (b)(2)(A), reports. OSM notified

Kansas of the concerns by letter dated October 8, 1997 (Administrative

Record No. KS-615.5).

By letter dated November 14, 1997 (Administrative Record No. KS-

615.6), Kansas responded to OSM's concerns by submitting explanatory

information and revisions to its proposed program amendment. Kansas

proposed additional revisions and additions to K.A.R. 47-2-53,

definition for regulatory authority; K.A.R. 47-2-75a(6)(A), definition

for director; K.A.R. 47-3-42(a)(49)(A), (a)(49)(D) and (a)(49)G),

procedures for challenging ownership or control links shown in

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AVS; K.A.R. 47-3-42(a)(50)(E), standards for challenging ownership or

control links and the status of violations; K.A.R. 47-5-5a(c)(4)(D),

review of waiver determination; K.A.R. 47-5-5a (c)(6)(C)(i) and (E),

summary disposition; K.A.R. 47-6-4(c), permit transfers, assignments,

and sales; K.A.R. 47-6-8(b), termination of jurisdiction; K.A.R. 47-6-

9(b)(3), exemption for coal extraction incident to government-financed

highway or other construction; K.A.R. 47-7-2(b)(6) and (b)(8), coal

exploration; K.A.R. 47-8-9(a)(1) and (b)(8), bonding procedures; K.A.R.

47-9-1(c), performance standards--surface mining activities; K.A.R. 47-

9-1(c)(17) and (e)(17), use of explosives: general requirements; K.A.R.

47-9-1(c)(35), backfilling and grading: time and distance requirements;

K.A.R. 47-9-1(j)(9), substitution of Kansas terms for Federal terms in

30 CFR parts 816 and 817; K.A.R. 47-16-1, eligible lands and water;

K.A.R. 47-16-6(d), liens; K.A.R. 47-16-9(a), contractor responsibility;

K.A.R. 47-16-10(b)(1), exclusion of certain noncoal reclamation sites;

and K.A.R. 47-16-11, reports.

In addition, via the facsimile machine on December 31, 1997

(Administrative Record No. KS-615.7), OSM notified Kansas of additional

concerns regarding its November 14, 1997, response. These concerns

involved typographical errors at K.A.R. 47-3-41(a)(49)(G), procedures

for challenging ownership or control links shown in AVS; K.A.R. 47-9-

1(c)(35)(a), backfilling and grading: time and distance requirements,

and K.A.R. 47-16-11(a), reports. Kansas responded to the concerns by

correcting typographical errors in a letter dated December 31, 1997

(Administrative Records No. KS-615.8).

Based upon the additional explanatory information and revisions to

the proposed program amendment submitted by Kansas, OSM reopened the

public comment period in the January 20, 1998, Federal Register (63 FR

2916). The public comment period closed on February 4, 1998.

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.

Kansas Regulatory Program

A. Regulations Proposed for Deletion or Revocation

1. K.A.R. 47-1-1, Title. Kansas proposed to revoke this section

that states these rules shall be known as rules of practice and

procedures of the surface mining section of the Kansas department of

health and environment. The Director is approving the revocation of

this section because it will not render the Kansas regulations less

effective than the Federal regulations.

2. K.A.R.: 47-1-4, Sessions. Kansas proposed to revoke this section

regarding special meetings scheduled by the surface mining section

chief with the approval of the Secretary of the Kansas department of

health and environment. The Director is approving the revocation of

this section because there is no counterpart Federal regulation and the

revocation will not render the Kansas regulations less effective than

the Federal regulations.

3. K.R. 47-1-10, General Notice Requirement. Kansas proposed to

revoke this section regarding notice of scheduled surface mining

section meetings. The Director is approving the revocation of this

section because there is no counterpart Federal regulation and the

revocation will not render the Kansas regulations less effective than

the Federal regulations.

4. K.A.R. 47-2-14, Definition of Complete and Accurate Application.

Kansas proposed to delete its definition of ``complete and accurate

application.'' The Director previously approved this deletion (See 58

FR 32847, June 14, 1993).

5. K.A.R. 47-3-42(a)(15), Land Use Information. Kansas proposed to

delete its adoption by reference of 30 CFR 779.22, land use

information. The Director is approving this deletion because OSM

deleted 30 CFR 779.22 from the Federal regulations in its entirety (See

59 FR 27932, May 27, 1994).

6. K.A.R. 47-4-14a(b)(2), Definition of Person. Kansas proposed to

delete its definition of ``person.'' The Director is approving the

deletion of this definition because Kansas proposed to adopt by

reference the Federal definition of ``person'' at 30 CFR 700.5. This

proposed adoption by reference can be found at K.A.R. 47-2-75(a).

7. K.A.R. 47-4-14a(d)(4)(G) and (d)(5)(B)(i), Formal Hearings--

Prehearing Conference. Kansas proposed to delete the above paragraphs

regarding prehearing conferences. These regulations would allow a

prehearing conference to be converted, without further notice, into a

conference hearing or a summary proceeding for disposition of the

matter or conversion of the proceeding to another type. The Director

previously approved the deletion of these provisions (See 58 FR 32847,

June 14, 1993).

8. K.A.R. 47-4-14a(d)(17)(C), Formal Hearings--Orders. Kansas

proposed to delete the above paragraph regarding formal hearings. This

regulation would allow Kansas to take immediate action to protect the

public interest in accordance with K.A.R. 47-4-14a(f), Emergency

Proceedings. The Director previously approved the deletion of this

provision (See 58 FR 32847, June 14, 1993).

9. K.A.R. 47-4-14a(e), Conference Hearings. Kansas proposed to

delete the above paragraph regarding conference hearings. This

regulation would allow Kansas to hold these hearings if their use does

not violate any provision of law and where there is a matter in which

there is no disputed issue of material fact or there is a disputed

issue of material fact and the parties agree to a hearing. The Director

previously approved the deletion of this provision (See 58 FR 32847,

June 14, 1993).

10. K.A.R. 47-4-14a(f), Emergency Proceedings. Kansas proposed to

delete the above paragraph regarding emergency proceedings. This

regulation would allow Kansas to have these proceedings in a situation

involving an immediate danger to the public health, safety or welfare

requiring immediate state agency action or as otherwise provided by

law. The Director previously approved the deletion of this provision

(See 58 FR 32847, June 14, 1993).

11. K.A.R. 47-4-14a(g), Summary Proceedings. Kansas proposed to

delete the above paragraph regarding summary proceedings. This

regulation would allow Kansas to have these proceedings if their use

does not violate any provision of law and the protection of the public

interest does not require the state agency to give notice and an

opportunity to participate to persons other than the parties. The

Director previously approved the deletion of this provision (See 58 FR

32847, June 14, 1993).

12. K.A.R. 47-13-4, Training and Certification of Blasters. Kansas

proposed to delete paragraphs (b)(2) and (b)(3) of this section. The

Director previously approved these deletions (See 59 FR 28769, June 3,

1994).

B. Regulations With Editorial Changes

Kansas proposed nonsubstantive wording changes, paragraph notation

changes, citation corrections, and other editorial changes in the

following sections of the K.A.R.: 47-1-3, communication; 47-1-8,

petitions to initiate rulemaking; 47-1-9, notice of citizen suits, 47-

1-11, permittee preparation and submission of reports; 47-2-21,

definition of employee; 47-2-53, definition of regulatory authority or

state regulatory authority; 47-2-53a,

[[Page 10311]]

definition of regulatory program; 47-2-58, definition of significant,

imminent environmental harm to land, air or water resources; 47-2-64,

definition of state act; 47-2-67, definition of surety bond; 47-2-74,

definition of public road; 47-2-75, definitions; 47-3-1, application

for mining permit; 47-3-2, application for mining permit; 47-3-3a,

application for mining permit--maps; 47-3-42, application for mining

permit; 47-4-14a, administrative hearing procedure; 47-4-15,

administrative hearings--discovery; 47-4-16, interim orders for

temporary relief; 47-4-17, administrative hearings--award of costs and

expenses; 47-5-5a, civil penalties; 47-5-16, final assessment and

payment of civil penalty; 47-6-1, permit review; 47-6-2, permit

revision; 47-6-3, permit renewals; 47-6-4, permit transfers,

assignments, and sales; 47-6-6, permit conditions; 47-6-7, permit

suspension or revocation; 47-6-8, termination of jurisdiction; 47-6-9,

exemption for coal extraction incident to government-financed highway

or other construction; 47-6-10, exemption for coal extraction

incidental to the extraction of other minerals; 47-7-2, coal

exploration; 47-8-9, bonding procedures; 47-8-11, use of forfeited bond

funds; 47-9-1, performance standards; 47-9-2, revegatation; 47-9-4,

interim performance standards; 47-10-1, underground mining; 47-11-8,

small operator assistance program; 47-12-4, lands unsuitable for

surface mining; 47-13-4, training and certification of blasters; 47-13-

5, responsibilities of operators and blasters-in-charge; 47-13-6,

training; 47-14-7, employee financial interests; 47-15-1a, inspection

and enforcement; 47-15-3, lack of information--inability to comply; 47-

15-4, injunctive relief; 47-15-7, state inspections; 47-15-8, citizen's

requests for state inspections; 47-15-15, service of notices of

violations and cessation orders; and 47-15-17, maintenance of permit

areas.

Because Kansas' proposed revisions to these previously approved

regulations are nonsubstantive in nature, the Director finds that the

proposed revisions do not render Kansas' regulations less effective

than the Federal regulations. Any substantive revisions included in the

above regulations are summarized below.

C. State Adoption of Federal Regulations by Reference

1. K.A.R. 47-2-75, Definitions. a. Kansas proposed to revise its

adoption by reference of applicable Federal definitions contained in 30

CFR 700.5, 701.5, 705.5, 773.5, and 846.5 from as they existed on July

1, 1990, to as they existed on July 1, 1995. The Director is approving

this adoption by reference.

b. In its adoption by reference of the Federal definitions at 30

CFR 700.5, Kansas proposed at K.A.R. 47-2-75(a)(6) to apply its own

definition of ``director'' to additional sections of the Federal

regulations that it adopted by reference. At these sections, the term

``director'' means the Director, Office of Surface Mining Reclamation

and Enforcement. The additional sections of the Federal regulations for

which this term is applicable are 30 CFR 705.4(a), 705.11 (c) and (d),

705.13, 705.15, 705.19(a), 705.21, and 785.13. The Director is

approving this amendment because the term ``director'' as used in these

sections does indeed refer to the Director, Office of Surface Mining

Reclamation and Enforcement and will not render the State regulations

less effective than the Federal regulations.

c. At K.A.R. 47-2-75)(e) in its adoption by reference of

definitions at 30 CFR 846.5, Kansas proposed that the reference to

``Section 703 of the act'' at paragraph (e)(6) be replaced by ``K.S.A.

1995 Supp. 75-2973.'' The Director is approving this revision because

the State statute reference is the counterpart to the Federal statute

at section 703 of SMCRA.

2. K.A.R. 47-3-2, Application for Mining Permit. At paragraph (b),

Kansas proposed to revise its adoption by reference of applicable

Federal regulations concerning permit applications at 30 CFR 777.11,

777.13, 777.14, and 777.15 from as they existed on July 1, 1990, to as

they existed on July 1, 1995. The Director is approving this adoption

by reference.

3. K.A.R. 47-3-42, Application for Mining Permit. a. At K.A.R. 47-

3-42(a), Kansas proposed to revise its adoption by reference of

applicable Federal regulations at 30 CFR Parts 773, 778, 779, 780, and

785 concerning applications for mining permits from as they existed on

July 1, 1990, to as they existed on July 1, 1995. In this adoption by

reference, Kansas proposed to add new paragraphs K.A.R. 47-3-42(a)(47),

verification of ownership or control application information; K.A.R.

47-3-42(a)(48), review of ownership or control violation information;

K.A.R. 47-3-42(a)(49), procedures for challenging ownership or control

links shown in AVS; and K.A.R. 47-3-42(a)(50), standards for

challenging ownership or control links and the status of violations.

Kansas also proposed to redesignate old paragraphs K.A.R. 47-3-

42(a)(47) and (a)(48) as new paragraphs K.A.R. 47-3-42(a)(51) and

(a)(52). The Director is approving this adoption by reference, the

addition of the new paragraphs, and the redesignation of the old

paragraphs.

b. In its adoption by reference of 30 CFR 780.4 at K.A.R. 47-3-

42(a)(17), Kansas proposed to replace the phrase ``this part'' with the

Kansas regulations ``K.A.R. 47-3-42(a)(17) to (35), inclusive.'' The

Director is approving the replacement language because it is the State

counterpart to the Federal regulations at 30 CFR Part 780 and will not

render the State regulations less effective than the Federal

regulations.

c. At K.A.R. 47-3-42(a)(43), Kansas proposed to add a clarifying

statement to its adoption by reference of 30 CFR 773.15. The statement

reads as follows:

Only in paragraph 30 CFR 773.15(b) shall the term ``act'' mean

``surface mining control and reclamation act of 1977 (Pub. L. 95-

87)'' and amendments thereto. All other references to the term

``act'' in 30 CFR 773.15 shall be replaced with ``state act.''

The Director is approving the above added statement because it will

not render the State regulations less effective than the Federal

regulations.

d. At K.A.R. 47-3-42(a)(45), Kansas proposed to add a clarifying

statement to its adoption by reference of 30 CFR 773.20. The statement

reads as follows:

except in subsection (c)(2) ``43 CFR 4.1370 through 4.1377, where

OSM is the regulatory authority, or under the State program

equivalent, where a state is the regulatory authority'' shall be

replaced by ``K.A.R. 47-4-14a'';

The Director is approving this added statement because K.A.R. 47-4-

14a contains the State counterpart regulations to 43 CFR 4.1370 through

4.1377 and will not render the State regulations less effective than

the Federal regulations.

e. In its adoption by reference of 30 CFR 773.24 at K.A.R. 47-3-

42(a)(49), Kansas proposed to delete 30 CFR 773.24(a)(2) from its

adoption by reference, replace ``paragraphs (a)(1) or (a)(2)'' in 30

CFR 773.24(b) with ``paragraphs (a)(1) or (a)(3),'' and replace Federal

terms, references, and citations in 30 CFR 773.24 with the appropriate

State terms and citations. Kansas also proposed to provide the State

address where an individual may submit information on a challenge of

the status of a State violation. The Director is approving these

amendments.

f. At K.A.R. 47-3-42(a)(50), Kansas proposed to adopt by reference

30 CFR 773.25 as it existed on July 1, 1995, with exceptions that

replace Federal terms and citations with the appropriate State terms

and citations. In addition, Kansas proposed to replace 30 CFR 773.25(b)

with K.A.R. 47-3-42(a)(50(B) which authorizes the secretary of the

Kansas

[[Page 10312]]

Department of Health and Environment or his designee to make decisions

concerning ownership and control relationships with regards to Kansas

coal mining applications, issued permits, and coal mining violations.

The Director is approving these amendments.

4. K.A.R. 47-5-5a, Civil Penalties. a. At K.A.R. 47-5-5a(a), Kansas

proposed to revise its adoption by reference of applicable Federal

regulations concerning civil penalties at 30 CFR 845.11, 845.12,

845.13, 845.14, 845.15, 845.16, 845.17, 845.18, 845.19, and Part 846

from as they existed on July 1, 1990, to as they existed on July 1,

1995. Kansas also proposed in its adoption by reference to replace

certain Federal terms and citations with the appropriate State terms

and citations at paragraph (b). The Director is approving this adoption

by reference.

b. At K.A.R. 47-5-5a(a)(10) that adopts by reference 30 CFR part

846, Kansas proposed to delete the phrase, ``a Federal lands program,''

and to change the phrase, ``Federal enforcement of a state program

pursuant to section 521 of the act'' to ``enforcement of a state

program pursuant to K.S.A. 49-405 of the state act.'' Kansas also

proposed to adopt by reference 30 CFR 870.15(e)(1) through (e)(5), (f),

and (g) as they relate to 30 CFR 845.18(d) with the exception of the

sentence in paragraph (f) that specifies that ``this penalty is in

addition to the interest described in paragraph (c) of this section.''

The Director previously approved this amendment (See 59 FR 28769, June

3, 1994).

c. At K.A.R. 47-5-5a(b)(13) through (20), Kansas proposed to add

more State terms and citations that will replace specified Federal

terms and citations wherever they appear in the text of the Federal

regulations concerning civil penalties that were adopted by reference

under K.A.R. 47-5-5a. The Director previously approved this amendment

(See 59 FR 28769, June 3, 1994).

d. At K.A.R. 47-5-5a(c)(5), Kansas proposed to revise this

paragraph to read as follows:

In civil penalty proceedings, the department shall have the

burden of going forward to establish a prima facie case as to the

fact of the violation, the amount of the civil penalty, and the

ultimate burden of persuasion as to the amount of the civil penalty.

The person who petitioned for review shall have the ultimate burden

of persuasion as to the fact of the violation.

The Director previously approved this amendment (See 58 FR 32847,

June 14, 1993).

e. Kansas proposed to revise K.A.R. 47-5-5a(c)(7)(C), concerning

the initial order of the presiding officer. This revision would require

the presiding officer to order the department to refund the appropriate

amount to the person who made the payment. The department must remit

the amount within 30 days of receipt of the order from the presiding

officer that finds no violation or that reduces the penalty paid. The

Director previously approved this amendment (See 59 FR 28769, June 3,

1994).

f. Kansas proposed to revise K.A.R. 47-5-5a(c)(7)(D) by requiring

that if the presiding officer increases the amount of the civil penalty

above that of the proposed assessment, the presiding officer is to

order payment of the appropriate amount within 15 days after an order

increasing the civil penalty is mailed. The Director previously

approved this amendment (See 58 FR 32847, June 14, 1993).

5. K.A.R. 47-6-3, Permit Renewals. At paragraph (a) Kansas proposed

to revise its adoption by reference of 30 CFR 774.15 concerning permit

renewals from as it existed on July 1, 1990, to as it existed on July

1, 1995. The Director is approving this amendment.

6. K.A.R. 47-6-4, Permit Transfers, Assignments, and Sales. At

paragraph (b), Kansas proposed to revise its adoption by reference of

30 CFR 774.17 concerning permit transfers, assignments, or sales from

as it existed on July 1, 1990, to as it existed on July 1, 1995. The

Director is approving this amendment.

7. K.A.R. 47-6-6, Permit Conditions. At paragraph (a), Kansas

proposed to revise its adoption by reference of 30 CFR 773.17

concerning permit conditions from as it existed on July 1, 1990, to as

it existed on July 1, 1995. The Director is approving this amendment.

8. K.A.R. 47-6-8, Termination of Jurisdiction. At paragraph (a),

Kansas proposed to revise its adoption by reference of 30 CFR 700.11,

deleting subsections (a)(1) and (b), from as it existed on July 1,

1990, to as it existed on July 1, 1995. The deletion of subsections

(a)(1) and (b) in Kansas' adoption by reference of 30 CFR 700.11 is

previously approved language. The Director is approving this amendment.

9. K.A.R. 47-6-9, Exemption for Coal Extraction Incident to

Government-Financed Highway or Other Construction. At paragraph (a),

Kansas proposed to revise its adoption by reference of 30 CFR 707.4,

707.5, 707.11, and 707.12 from as they existed on July 1, 1990, to as

they existed on July 1, 1995. The Director is approving this amendment.

10. K.A.R. 47-6-10, Exemption for Coal Extraction Incidental to the

Extraction of Other Minerals. At paragraph (a), Kansas proposed to

revise its adoption by reference of 30 CFR 702.1, 702.5, 702.10,

702.11, 702.12, 702.13, 702.14, 702.15, 702.16, 702.17, and 702.18 from

as they existed on July 1, 1990, to as they existed on July 1, 1995.

The Director is approving this amendment.

11. K.A.R. 47-7-2, Coal Exploration. At paragraph (a), Kansas

proposed to revise its adoption by reference of 30 CFR 772.11, 772.12,

772.13, 772.14, and 772.15 from as they existed on July 1, 1990, to as

they existed on July 1, 1995. The Director is approving this amendment.

12. K.A.R. 47-8-9, Bonding Procedures. At paragraph (a), Kansas

proposed to revise its adoption by reference of 30 CFR 800.4 [deleting

subsection (d)], 800.5 [deleting subsection (c)], 800.11 [deleting

subsection (e)], 800.12 [deleting subsection (c)], 800.13, 800.14,

800.15, 800.16, 800.17, 800.20, 800.21, 800.30, 800.40, 800.50, and

800.60 [deleting subsection (d)] from as they existed on July 1, 1990,

to as they existed on July 1, 1995. The Director is approving this

amendment.

13. K.A.R. 47-9-1, Performance Standards. a. At K.A.R. 47-9-1(a),

Kansas proposed to revise its adoption by reference of 30 CFR 810.2,

810.4 [deleting subsection (a)], and 810.11 from as they existed on

July 1, 1990, to as they existed on July 1, 1995. The Director is

approving this adoption by reference. At paragraph (a)(3), Kansas

proposed to add an exception to the adoption of 30 CFR 810.11 which

would replace ``parts 815 through 828'' with the State counterpart in

K.A.R. 47-9-1. The Director previously approved this amendment (See 59

FR 28769, June 3, 1994). Kansas also proposed to add paragraph (a)(5)

which would replace the phrases ``every state program'' and ``the

applicable regulatory program'' with ``the regulatory program.'' The

Director previously approved this amendment (See 58 FR 32847, June 14,

1993).

b. At K.A.R. 47-9-1(b), Kansas proposed to revise its adoption by

reference at 30 CFR 815.13 and 815.15 from as they existed on July 1,

1990, to as they existed on July 1, 1995. The Director is approving

this amendment.

c. At K.A.R. 47-9-1(c), Kansas proposed to revise its adoption by

reference of 30 CFR Part 816 (excluding 30 CFR 816.10, 816.72, 816.73,

and 816.107) from as it existed on July 1, 1990, to as it existed on

July 1, 1995.

[[Page 10313]]

The Director is approving this adoption by reference.

i. At K.A.R. 47-9-1(c)(35), Kansas proposed to replace 30 CFR

816.101, backfilling and grading: time and distance requirements, in

its adoption by reference of portions of 30 CFR part 816, with the

following language:

(a) Except as provided in paragraph (b) of this section, rough

backfilling and grading for surface mining activities shall be

completed according to one of the following schedules:

(1) Contour mining. Within 60 days or 1,500 linear feet

following coal removal;

(2) Area mining. Within 180 days following coal removal, and not

more than four spoil ridges behind the active pit being worked, the

spoil from the active pit constituting the first ridge; or

(3) Other surfacing mining methods. In accordance with the

schedule established by the department.

(b) The department may extend the time allowed for rough

backfilling and grading for the entire permit area or for a specific

portion of the permit area if the permittee demonstrates in

accordance with K.A.R. 47-3-42(a)(24), adopting by reference 30 CFR

780.18(b)(3) that additional time is necessary;

OSM's time and distance requirements at 30 CFR 816.101 were

suspended indefinitely effective on August 31, 1992 (See 57 FR 33874,

July 31, 1992). Therefore, States may adopt backfilling and grading

time and distance standards which result in contemporaneous mining and

reclamation as required by 30 CFR 816.100. The Director finds that

Kansas' proposed provisions at K.A.R. 47-9-1(c)(35) are no less

effective than the Federal requirements for contemporaneous reclamation

at 30 CFR 816.100 and is approving this amendment.

ii. Kansas proposed to revise K.A.R. 47-9-1(c)(36), backfilling and

grading: general requirements, by deleting subsections (k)(3) (i) and

(ii) in its adoption by reference of 30 CFR 816.102. Kansas also

proposed to delete the following statement:

The first paragraph of subsection (a) of 30 CFR 816.102 shall be

replaced by the following: Absent an approved schedule, backfilling

and grading will be completed within 180 days following coal removal

and shall not be more than four spoil ridges behind the pit being

worked, the spoil from the active pit being considered the first

ridge. Disturbed areas shall be backfilled and graded to comply with

the following:

In addition, Kansas proposed to renumber existing paragraphs

(c)(36) through (c)(50) as paragraphs (c)(37) through (c)(51),

respectively. The Director previously approved these amendments (See 59

FR 28769, June 3, 1994).

iii. At redesignated K.A.R. 47-9-1(c)(43), revegetation: standards

for success, Kansas proposed to delete previously approved language in

paragraph (c)(2) that was added to its adoption by reference of 30 CFR

816.116 and editorial note ``3.'' The Director previously approved this

amendment (See 59 FR 28769, June 3, 1994).

iv. Kansas proposed to add requirements at K.A.R. 47-9-1(c)(43) in

its adoption by reference of 30 CFR 816.116(a) and (c)(4). At 30 CFR

816.116(a), Kansas proposed to add paragraph (a)(3) regarding the

submission of data being used for bond release. At 30 CFR

816.116(c)(4), Kansas proposed to add paragraph (i) concerning normal

husbandry practices used to repair gullies. The Director previously

approved these amendments (See 59 FR 28769, June 3, 1994). However, in

the previous approval, paragraph (a)(3) was formerly paragraph

(a)(2)(i).

v. At K.A.R. 47-9-1(c)(46) in its adoption by reference of 30 CFR

816.133, postmining land use, Kansas proposed to delete subsection (d).

The Director previously approved this amendment (See 59 FR 28769, June

3, 1994).

d. At K.A.R. 47-9-1(d)(3), Kansas proposed to add a paragraph that

30 CFR 816.107, backfilling and grading: steep slopes, was deleted from

its adoption by reference of 30 CFR Part 816. The Director is approving

this added language because Kansas does not have steep slope mining.

e. At K.A.R. 47-9-1(e), Kansas proposed to revise its adoption by

reference at 30 CFR Part 817 from as it existed on July 1, 1990, to as

it existed on July 1, 1995. The Director is approving this adoption by

reference.

i. In its adoption by reference of 30 CFR 817.61 at K.A.R. 47-9-

1(e)(17), Kansas proposed to delete everything from 30 CFR 817.61(c)(1)

except the statement, ``all blasting operations shall be conducted

under the direction of a certified blaster.'' The Director previously

approved this deletion (See 59 FR 28769, June 3, 1994).

ii. Kansas proposed to add an additional requirement at K.A.R. 47-

9-1(e)(39) in its adoption by reference of 30 CFR 817.116(a). At K.A.R.

47-9-1(e)(39), Kansas proposed to add new subparagraph (a)(3),

regarding the submission of data being used for bond release, at the

end of the adopted Federal regulations at 30 CFR 817.116(a). While the

Federal regulations do not provide similar detailed requirements

regarding submission of data used for bond release, in accordance with

section 505(b) of SMCRA and 30 CFR 730.11(b), the State regulatory

authority has the discretion to impose land use and environmental

controls and regulations on surface coal mining and reclamation

operations that are no less stringent than those imposed under SMCRA

and the Federal regulations. Moreover, the State regulatory authority

has the discretion to impose land use and environmental controls and

regulations on surface coal mining operations for which no Federal

counterpart exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate

that such State provisions shall not be construed to be inconsistent

with the Federal program. Therefore, the Director is approving this

proposed revision at K.A.R. 47-9-1(e)(39).

iii. In its adoption by reference of 30 CFR 817.133, postmining

land use, at K.A.R. 49-9-1(e)(44), Kansas proposed to delete subsection

(d). The Director previously approved this amendment (See 59 FR 28769,

June 3, 1994).

f. At K.A.R. 47-9-1(f), Kansas proposed to revise its adoption by

reference of 30 CFR Part 819, excluding 30 CFR 819.1, from as it

existed on July 1, 1990, to as it existed on July 1, 1995. The Director

is approving this adoption by reference.

g. At K.A.R. 47-9-1(g), Kansas proposed to revise its adoption by

reference of 30 CFR 823.4, 823.11 [deleting subsection (a)], 823.12,

823.14, and 823.15 from as they existed on July 1, 1990, to as they

existed on July 1, 1995. The Director is approving this adoption by

reference with the deletion of 30 CFR 823.11(a). The deleted Federal

regulation excludes coal preparation plants, support facilities, and

roads of underground mines that are actively used over extended periods

of time and where such uses affect a minimal amount of land from being

subject to prime farmland performance standards. Because Kansas did not

incorporate the adoption by reference of 30 CFR 823.11(a) into its

regulation, the above underground facilities are now subject to Kansas'

prime farmland performance standards.

h. At K.A.R. 47-9-1(h), Kansas proposed to revise its adoption by

reference of 30 CFR 827.11, 827.12, and 827.13 from as they existed on

July 1, 1990, to as they existed on July 1, 1995. The Director is

approving this adoption by reference.

i. At K.A.R. 47-9-1(i), Kansas proposed to revise its adoption by

reference of 30 CFR 828.11 and 828.12 from as they existed on July 1,

1990, to as they existed on July 1, 1995. The Director is approving

this adoption by reference.

j. At K.A.R. 47-9-1(j), Kansas proposed to revise its list of terms

that replace terms in the Federal regulations

[[Page 10314]]

adopted by reference under K.A.R. 47-9-1. At paragraph (j)(8), any

reference to ``Part 816'' is replaced by ``K.A.R. 47-9-1(c).'' At

paragraph (j)(9), any reference to ``Part 817'' is replaced by ''K.A.R.

47-9-1(e).'' The Director is approving this revision because the

replacement terms are the State counterpart regulations to the replaced

Federal regulations.

14. K.A.R. 47-9-4, Interim Performance Standards. At paragraph (a),

Kansas proposed to revise its adoption by reference of applicable

Federal regulations at 30 CFR Parts 710, 715, and 716 from as they

existed on July 1, 1990, to as they existed on July 1, 1995. The

Director is approving this amendment.

15. K.A.R. 47-10-1, Underground Mining. At paragraph (a), Kansas

proposed to revise its adoption by reference of applicable Federal

regulations at 30 CFR parts 783 and 784 from as they existed on July 1,

1990, to as they existed on July 1, 1995. The Director is approving

this amendment. Kansas further proposed to list the actual Federal

regulation sections adopted rather than listing the sections that it

chose not to include in its adoption by reference of 30 CFR parts 783

and 784. The Director previously approved this amendment (See 59 FR

28769, June 3, 1994).

16. K.A.R. 47-11-8, Small Operator Assistance Program. At paragraph

(a), Kansas proposed to revise its adoption by reference of applicable

Federal regulations at 30 CFR part 795 from as they existed on July 1,

1990, to as they existed on July 1, 1995. The Director is approving

this amendment.

17. K.A.R. 47-12-4, Lands Unsuitable for Surface Mining.

a. At paragraph (a), Kansas proposed to revise its adoption by

reference of applicable Federal regulations at 30 CFR parts 761, 762,

and 764 from as they existed on July 1, 1990, to as they existed on

July 1, 1995. The Director is approving this amendment.

b. Kansas proposed to revise paragraph (a)(6), which adopts 30 CFR

762.12 by reference, by specifying that the term ``secretary'' shall

mean the ``secretary of the United States Department of the Interior.''

The Director previously approved this amendment (See 59 FR 28769, June

3, 1994).

18. K.A.R. 47-13-4, Training and Certification of Blasters. a. At

paragraph (a), Kansas proposed to revise its adoption by reference of

applicable Federal regulations at 30 CFR part 850 from as they existed

on July 1, 1990, to as they existed on July 1, 1995. The Director is

approving this amendment.

b. Kansas proposed to remove existing paragraphs (b)(2) and (b)(3)

and to redesignate existing paragraphs (b)(4) and (b)(5) as paragraphs

(b)(2) and (b)(3), respectively. The Director previously approved this

amendment (See 59 FR 28769, June 3, 1994). Kansas also proposed to

redesignate paragraph (b)(6) as paragraph (c). The Director is

approving this amendment.

19. K.A.R. 47-14-7, Employee Financial Interests. At paragraph (a),

Kansas proposed to revise its adoption by reference of applicable

Federal regulations at 30 CFR Part 705 from as they existed on July 1,

1990, to as they existed on July 1, 1995. The Director is approving

this amendment.

20. K.A.R. 47-15-1a, Inspection and Enforcement. a. At paragraph

(a), Kansas proposed to revise its adoption by reference of applicable

Federal regulations at 30 CFR Parts 840, 842, and 843 from as they

existed on July 1, 1990, to as they existed on July 1, 1995. The

Director is approving this amendment.

b. At paragraph (b), Kansas proposed to revise its list of terms

that replaces terms in the Federal regulations adopted by reference

under K.A.R. 47-15-1a by adding paragraphs (b)(20) and (b)(21).

Paragraph (b)(20) specifies that the term ``Director'' shall be

replaced by ``secretary.'' Paragraph (b)(21) specifies that the

reference to ``30 CFR 843.15(e)'' shall be replaced by ``An informal

public hearing shall be conducted in accordance with K.A.R. 47-4-14a.''

The Director previously approved these amendments (See 59 FR 28769,

June 3, 1994).

D. Revisions to Kansas' Regulations That Are Substantively the Same as

the Corresponding Provisions of the Federal Regulations

1. K.A.R. 47-4-14a(c), Administrative Hearing Procedures--Rules of

Procedure. a. At paragraph (c)(1), Kansas proposed to require that

hearing locations be designated by the presiding officer, giving

consideration to the convenience of the parties, their representatives

and witnesses, except as otherwise provided by the state act. The

Director previously approved this amendment (See 58 FR 32847, June 14,

1993).

b. At paragraphs (c)(7) and (c)(7)(B), Kansas proposed that persons

``may'' petition for leave to intervene in a proceeding as opposed to

persons ``shall'' petition for leave to intervene in a proceeding.

Kansas also proposed that the presiding officer make a decision to

grant intervention based on factors listed at K.A.R. 47-4-

14a(c)(7)(B)(i)-(iv) if subsections (7)(A)(i) or (7)(A)(ii) are not

applicable. The Director previously approved these amendments (See 59

FR 28769, June 3, 1994).

c. Kansas proposed to revise paragraph (c)(8) to read as follows:

Voluntary dismissal. Any party who initiated a proceeding may

withdraw it by moving to dismiss. The presiding officer grant such

motion.

The Director previously approved this amendment (See 58 FR 32847,

June 14, 1993).

d. At paragraph (c)(11), Kansas proposed to provide that any person

that fails to file a responsive pleading by the required time ``may''

be deemed to have waived his right to a hearing. Kansas also proposed

to add that unless all parties who are entitled to a hearing waive such

rights or are deemed to have waived such rights, a hearing shall be

held. The Director previously approved these amendments (See 59 FR

28769, June 3, 1994).

E. Revisions to Kansas' Regulations That Are Not Substantively

Identical to the Corresponding Provisions of the Federal Regulations

1. K.A.R. 47-4-14a, Administrative Hearing Procedures. a. At K.A.R.

47-4-14a(c)(2), Kansas proposed to change the information regarding

where to file administrative hearing documents. All documents are to be

filed with the administrative appeals section of the Kansas Department

of Health and Environment, Suite 400D, 109 SW 9th, Topeka, Kansas

66612-1215. The Director is approving this change because it only

updates the information as to where to file administrative hearing

documents and will not render the Kansas program less effective than

the Federal regulations.

b. At K.A.R. 47-4-14a(c)(4), Kansas proposed to change the

recipient of the notices of appeals or petitions for reviews from the

``office of legal services'' to the ``administrative appeals section.''

The Director is approving this change because it only updates the

information concerning who the recipient of these documents is and will

not render the Kansas program less effective than the Federal

regulations.

c. At K.A.R. 47-4-14a(d)(2)(C), Kansas proposed to change the word

``shall'' to the word ``may,'' regarding the right of any party to

petition for the disqualification of a presiding officer. The Director

previously approved this wording change (See 58 FR 32847, June 14,

1993).

d. At K.A.R. 47-4-14a(d)(2)(D), Kansas proposed to add a new

provision concerning disqualification of a presiding officer that reads

as follows:

[[Page 10315]]

In the event that the presiding officer fails to grant a

petition for disqualification, the petitioning party may file an

affidavit of personal bias or disqualification with substantiating

facts, and the matter of disqualification shall be determined by the

secretary.

The Director previously approved this amendment (See 59 FR 28769,

June 3, 1994).

e. At K.A.R. 47-4-14a(d)(3), Kansas proposed to revise this

paragraph to state that the presiding officer designated to conduct the

hearing ``may'' conduct a prehearing conference. The Director

previously approved this wording change (See 58 FR 32847, June 14,

1993).

f. At K.A.R. 47-4-14a(d)(3)(A), Kansas proposed to correct the

incorrect reference citation. The Director previously approved this

correction (See 58 FR 32847, June 14, 1993).

2. K.A.R. 47-6-2, Permit Revision. At paragraph (c), Kansas

proposed to add a provision that applications for permit revisions only

need to be accompanied by a map ``when it is required.'' The Director

is approving this provision because it is not inconsistent with the

Federal regulations and will not render the Kansas regulations less

effective than the Federal regulations.

3. K.A.R. 47-6-7, Permit Suspension or Revocation. a. At paragraph

(e), Kansas proposed that the procedure set forth in K.A.R. 47-4-14a(d)

shall be followed regarding a proceeding to suspend or revoke a permit

``except as provided for in this regulation.'' At paragraph (h)(2),

Kansas proposed that the procedure set forth in K.A.R. 47-4-14a(d)(14)

is to be followed regarding appeals pertaining to suspended or revoked

permits ``except as provided for in this regulation.'' The Director is

approving these amendments because they will not render the State

regulations less effective than the Federal regulations.

b. Kansas proposed to revise paragraph (h)(1) by requiring a party

to file a notice of appeal of an initial order in a suspension or

revocation proceeding with the secretary within 15 days after receipt

of the order. This revision is no less effective than the Federal

regulation at 43 CFR 4.1377 which allows a party to petition for

discretionary review of initial decisions.

4. K.A.R. 47-5-5a, Civil Penalties. At paragraph (b)(17), Kansas

proposed to update the address where individuals file a petition for

review of a proposed individual civil penalty assessment. The new

address is ``Administrative Appeals Coordinator, Administrative Appeals

Section, Office of the Secretary, Kansas Department of Health and

Environment, Mills Building, Suite 400D, 109 SW 9th Street, Topeka,

Kansas 66612-1215.'' The Director is approving this amendment.

F. Revisions to Kansas' Regulations With No Corresponding Federal

Regulations

1. K.A.R. 47-4-14a, Administrative Hearing Procedure. a. At

paragraph (d) regarding formal hearings, Kansas proposed to remove the

phrase ``except as otherwise provided by subsections (e), (f), and

(g).'' The Director previously approved this amendment (See 58 FR

32847, June 14, 1993).

b. Kansas proposed to revise paragraph (d)(6)(E)(iii) and to add

paragraph (d)(6)(E)(iv). At paragraph (d)(6)(E)(iii), Kansas proposed

that notice of administrative hearings under this subsection may

include all types of information provided in sections (d)(6)(A) through

(D) or may consist of a brief statement indicating the subject matter,

parties, time, place where the hearing will be held, locations where

the general public may meet for hearings which are conducted

electronically, nature of the hearing, manner in which copies of the

notice to the parties may be inspected and copied, and the name and

telephone number of the presiding officer. At paragraph (d)(6)(E)(iv),

Kansas proposed a provision that requires notice of a formal hearing to

be posted at the surface mining section office and, where practicable,

be published in a newspaper of general circulation in the area of the

mine at least seven days prior to the hearing. The Director previously

approved these amendments (See 59 FR 28769, June 3, 1994).

c. At K.A.R. 47-4-14a(d)(15), Kansas proposed to allow the

presiding officer or secretary or secretary's designee to take action

on a petition for stay either before or after the effective date of an

initial or final order. The Director previously approved this amendment

(See 58 FR 32847, June 14, 1993).

2. K.A.R. 47-4-15, Administrative Hearings; Discovery.

Kansas proposed to add an introductory statement regarding

discovery in administrative hearings: ``Discovery shall be permitted to

the extent allowed by the presiding officer or as agreed to by the

parties.'' The Director previously approved this amendment (See 58 FR

32847, June 14, 1993).

Kansas Abandoned Mine Land Reclamation Plan

A. Regulations With Editorial Changes

Kansas proposed minor wording changes, paragraph notation changes,

citation corrections and other editorial changes in the following

sections of the K.A.R.: 47-16-1, eligible lands and water; 47-16-2,

reclamation project evaluation; 47-16-3, consent to entry; 47-16-4,

entry for study or exploration; 47-16-5, entry for consent to reclaim;

47-16-6, liens; 47-16-7, appraisals; and 47-16-8, satisfaction of

liens.

Because Kansas' proposed revisions to these previously approved

regulations are nonsubstantive in nature, the Director finds that the

proposed revisions do not render Kansas' regulations less effective

than the Federal regulations. Substantive revisions included in these

regulations are summarized below.

B. Revisions to Kansas' Regulations That Are Substantively Identical to

the Corresponding Provisions of the Federal Regulations

The proposed State regulations listed in the table contain language

that is the same as or similar to the corresponding sections of the

Federal regulations. Differences between the proposed State regulations

and the Federal regulations are nonsubstantive.

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

Topic State regulation Federal counterpart regulation

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

General Reclamation K.A.R. 47-16-9..................... 30 CFR 874.16.

Requirements-Contractor

Responsibility.

Noncoal Reclamation-Exclusion K.A.R. 47-16-10.................... 30 CFR 875.16 and 875.20.

of Certain Noncoal Reclamation

Sites.

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

[[Page 10316]]

Because the above proposed revisions are identical in meaning to

the corresponding Federal regulations, the Director finds that Kansas'

proposed regulations are no less effective than the Federal regulations

and is approving them.

C. Revisions to Kansas' Regulations That Are Not Substantively

Identical to the Corresponding Federal Regulations

1. K.A.R. 47-16-5, Entry and Consent to Reclaim. Kansas proposed to

revise paragraph (b)(1) to read as follows:

(1) Before entry a written finding shall be made by the

Secretary with reasons supporting the following conclusions: (A) An

emergency exists constituting a danger to the public health, safety,

or general welfare; and (B) no other person or agency will act

expeditiously to restore, reclaim, abate, control, or prevent the

adverse effects of coal mining practices.

The Director is approving this amendment because Kansas proposed to

replace at K.A.R. 47-16-5(b)(1) the reference to section 410 of SMCRA

that defines when an emergency exists with the actual language of

section 410 of SMCRA that defines when an emergency exists.

2. K.A.R. 47-16-11, Reports. Kansas proposed a new section which

specifies that for each grant, cooperative agreement or both, Kansas

shall semiannually or annually (whichever the case may be) submit to

OSM any reporting as required by OSM. The Director is approving this

amendment because it is no less effective than the Federal regulations

at 30 CFR 886.23 and the requirements of the Federal Assistance Manual.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the proposed amendment, but none

were received.

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 Kansas program (Administrative

Record No. KS-615.1). OSM received one comment from the U.S. Fish and

Wildlife Service stating that it had no comments to offer on the

proposed state regulations (Administrative Record No. KS-615.2).

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 Kansas proposed to make in this amendment

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

request the EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from the EPA (Administrative Record No. KS-615.1).

The EPA did not respond to OSM's request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments on proposed amendments which may have an effect on historic

properties from the SHPO and ACHP. OSM solicited comments on the

proposed amendment from the SHPO and ACHP (Administrative Record No.

KS-615.1). Neither the SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Kansas on May 7, 1997, and as revised on

November 14 and December 31, 1997.

The Director approves the regulations as proposed by Kansas with

the provision that they be fully promulgated in identical form to the

regulations submitted to and reviewed by OSM and the public.

The Federal regulations at 30 CFR part 916, codifying decisions

concerning the Kansas 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.

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 12988

The Department of the Interior has conducted the reviews required

by section 3 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

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.

Unfunded Mandates

OSM has determined and certifies pursuant to the Unfunded Mandates

Reform Act (2 U.S.C. 1502 et. seq.) that this rule will not impose a

cost of $100 million or more in any given year on

[[Page 10317]]

local, state, or tribal governments or private entities.

List of Subjects in 30 CFR Part 916

Intergovernmental relations, Surface mining, Underground mining.

Dated: February 23, 1998.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 916 is amended

as set forth below:

PART 916--KANSAS

1. The authority citation for part 916 continues to read as

follows:

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

2. Section 916.15 is amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 916.15 Approval of Kansas regulatory program amendments.

* * * * *

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

Original amendment submission date Date of final publication Citation/description

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

* * * * * *

*

May 7, 1997........................ March 3, 1998.............. K.A.R. 47-1-1, 3, 4, 8, 9, 10, 11; 47-2-14,

21, 53, 53a, 58, 64, 67, 74, 75; 47-3-1, 2,

3a, 42; 47-4-14a, 47-4-15; 47-4-16; 47-4-17;

47-5-5a; 47-5-16; 47-6-1, 2, 3, 4, 6, 7, 8,

9, 10; 47-7-2; 47-8-9, 11; 47-9-1, 2, 4; 47-

10-1; 47-11-8; 47-12-4; 47-13-4, 5, 6; 47-14-

7; 47-15-1a; 47-15-3, 4, 7, 8, 15, 17.

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

3. Section 916.25 is amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 916.25 Approval of Kansas abandoned mine land reclamation plan

amendments.

* * * * *

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

Original amendment submission

date Date of final publication Citation/description

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

* * * * * *

*

May 7, 1997...................... March 3, 1998............ K.A.R. 47-16-1 through 47-16-11.

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[FR Doc. 98-5392 Filed 3-2-98; 8:45 am]

BILLING CODE 4310-05-M