80 FR 63117 - Kentucky Regulatory Program
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement Federal Register Volume 80, Issue 201 (October 19, 2015)
Office of Surface Mining Reclamation and Enforcement
Federal Register Volume 80, Issue 201 (October 19, 2015)
| Page Range | 63117-63120 | |
| FR Document | 2015-26478 |
[Federal Register Volume 80, Number 201 (Monday, October 19, 2015)] [Rules and Regulations] [Pages 63117-63120] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-26478] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 917 [SATS No. KY-253-FOR; Docket ID: OSM-2009-0014; S1D1S SS08011000 SX064A000 167S180110; S2D2S SS08011000 SX064A000 16X501520] Kentucky Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSMRE), Interior. ACTION: Final rule; approval of amendment. ----------------------------------------------------------------------- SUMMARY: We are approving an amendment to the Kentucky regulatory program (the Kentucky program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). As a result of OSMRE's review of the Kentucky program, OSMRE has determined that two previously required amendments, 30 CFR 917.16(e) and (h), are to be removed because Kentucky's program, with regard to Ownership and Control (O&C), and Transfer, Assignment or Sale of Permit Rights (TAS) is now consistent with SMCRA and the corresponding Federal regulations. DATES: Effective Date: October 19, 2015. FOR FURTHER INFORMATION CONTACT: Robert Evans, Field Office Director, Telephone: (859) 260-3904. Email: [email protected]. SUPPLEMENTARY INFORMATION: I. Background on the Kentucky Program II. Submission of the Amendment III. OSMRE's Findings IV. Summary and Disposition of Comments V. OSMRE's Decision VI. Procedural Determinations I. Background on the Kentucky Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non- Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, ``a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act . . .; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.'' See U.S.C. 1253 (a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Kentucky program in the May 18, 1982, Federal Register (47 FR 21434). You can also find later actions concerning Kentucky's program and program amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16, and 917.17. II. Submission of the Proposed Amendment OSMRE first promulgated final rules to address O&C and TAS over 20 years ago. Subsequently, OSMRE published changes to O&C and TAS, some in response to Federal Court mandates, culminating in the issuance of Federal rulemaking on December 3, 2007. 72 FR 68000. Specifically, the Federal rulemaking amended definitions pertaining to ownership, control, and transfer, assignment, or sale of permit rights and OSMRE regulatory provisions governing: Permit eligibility determinations; improvidently issued permits; ownership or control challenges; post- permit issuance actions and requirements; transfer, assignment, or sale of permit rights; application and permit information; and alternative enforcement. Prior to the implementation of the December 2007 Federal rulemaking, OSMRE issued required amendments to the Kentucky Department of Natural Resources (KYDNR) in 1991 and 1993. These previously required amendments are codified at 30 CFR 917.16(e), as noticed in the September 23, 1991, Federal Register (56 FR 47907), and 30 CFR 917.16(h), as noticed in the January 12, 1993, Federal Register (58 FR 3833), respectively. These previously required amendments were established prior to OSMRE's final rulemaking on O&C on December 3, 2007, 72 FR 68000. On December 8, 2008, following publication in the Federal Register, and resolution of litigation resulting from this rulemaking, the Director of OSMRE issued a memorandum to the Regional Directors to conduct a review of the applicable provisions of all the State programs to ascertain what, if any, amendments were required to conform to the December 3, 2007, Federal rulemaking. Following the instructions given by the Director, OSMRE's Lexington Field Office (LFO) conducted an evaluation of the Kentucky program to determine if amendments to the Kentucky program were required. Consistent with 30 CFR 732.17, LFO reviewed the Kentucky program, comparing it to the current Federal regulations using a standard no less stringent than SMCRA and no less [[Page 63118]] effective than the Federal regulations, in meeting the requirements of the Act. This review included review of the determinations in 1991, and 1993, codified at 30 CFR 917.16(e) and (h), that Kentucky must submit two required amendments relative to O&C. As part of the evaluation, LFO conducted several meetings with KYDNR and considered whether the Kentucky program was being implemented in conformity with current Federal regulations. During the review, LFO solicited assistance from the OSMRE Applicant Violator System Office (AVSO). The AVSO is a division of OSMRE that assists regulatory authorities in making permit eligibility determinations using the Applicant Violator System (AVS) as required under section 510(c) of SMCRA for applicants of coal mining permits. Subsequent to programmatic review by LFO and independent review by the AVSO, LFO requested removal of the two previously required amendments because LFO and AVSO independently verified and determined that Kentucky has proper statutory authority to implement the requisite O&C and TAS standards in a manner that is no less stringent than provisions in SMCRA found at 30 U.S.C. 1260(c), and no less effective than the Federal regulations at 30 CFR 778.14. Further, LFO and AVSO determined Kentucky is appropriately implementing the Federal O&C and TAS rules as required by the Federal rulemaking on December 3, 2007. OSMRE announced the proposed decision, which would eliminate the previously required amendments, in the September 19, 2012, Federal Register (77 FR 58053). In the same document, OSMRE opened the public comment period and provided an opportunity for a public hearing or meeting. OSMRE did not hold a public hearing or meeting because neither was requested. The public comment period ended on October 19, 2012. OSMRE received one comment from the Kentucky Resources Council (KRC), an environmental advocacy group. III. OSMRE's Findings Following are the findings made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. OSMRE is approving the removal of two previously required amendments to the Kentucky program, found at 30 CFR 917.16(e) and (h), due to the following: (a) After significant review, OSMRE has determined that Kentucky has statutory authority to implement 405 Kentucky Administrative Regulations (KAR) 8:010 section 13, when coupled with the statutes and regulations referenced therein, in a manner no less stringent than SMCRA and no less effective than the Federal regulation counterpart found at 30 CFR part 774; and (b) Kentucky is implementing 405 KAR 8:010 section 13, in accordance with the Federal O&C regulations codified into law on December 3, 2007, as indicated in the Federal Register (72 FR 68000). OSMRE approves the removal of the required amendment found at 30 CFR 917.16 (e) regarding the Kentucky O&C regulations. KYDNR implements the Kentucky program in a manner that is no less stringent than SMCRA and no less effective than the regulations found at 30 CFR part 774. Previously, via a Federal Register notice dated September 23, 1991, (56 FR 47907), OSMRE reviewed and found a program amendment submitted by Kentucky to be less effective than the Federal counterpart. Among other things, Kentucky proposed to add a regulation which prohibited ``the issuance of a permit if the applicant, operator or anyone who owns or controls the applicant, controls or has controlled any surface coal mining and reclamation operation with a demonstrated pattern of willful violations of KRS chapter 350 and regulations adopted thereto. . . .'' OSMRE disapproved the proposed revisions and required Kentucky to further amend its program to correct the deficiencies identified, adding the following required program amendment: 30 CFR 917.16(e). By March 23, 1992, Kentucky shall amend its rules at 405 KAR 8:010 Sec. 13(4) to include violations of Federal regulatory programs and other State regulatory programs, not just violations of KRS chapter 350 and regulations adopted thereto. At the time the 1991 required amendment was authored, OSMRE took the position that Kentucky was solely and independently responsible for the collection of violation data in Kentucky and other states for the purpose of determining if it was necessary to deny a Kentucky permit applicant a surface mining permit, based on outstanding violations of SMCRA or certain other environmental protection statutes and rules. OSMRE's former position did not account for the Memorandum of Understanding (MOU) between OSMRE and the Commonwealth of Kentucky that provides, among other things: OSMRE shall develop, maintain, and provide for the use of Kentucky the AVS, which contains or will contain ownership and control data and violator information to assist Kentucky in meeting the mandated requirements under KRS 350.085(6). In addition to the required obligations of OSMRE, Kentucky, prior to making any decisions regarding permitting, agreed to perform an independent review of an applicant's history, then ``query AVS to determine whether the applicant is linked to a violator through ownership and control.'' MOU, page 5, paragraph IV(C)(5). While evaluating the impact of the 2007 Federal rulemaking on O&C and TAS, OSMRE concluded that KYDNR is appropriately relying on AVS data when determining to block or approve a permit in accordance with applicable provisions of SMCRA, Federal regulations and the MOU, consistent with 30 CFR parts 773 and 774. Further, OSMRE's AVSO independently verified that KYDNR utilizes the nationwide AVS on a daily basis to determine if Kentucky applicants are permit eligible prior to issuing any permit, evidencing conformity with the MOU. Additionally, as part of the AVS review, it was determined that Kentucky denies any permit application associated with any unabated Federal violations or violations issued by other states. Moreover, OSMRE concludes Kentucky is supplying sufficient information to AVS, and KYDNR is implementing Kentucky statutes and regulations consistent with SMCRA and the Federal regulations. OSMRE determines the current O&C program in Kentucky is implemented in a manner that ensures that no permit will be issued to an applicant who owns or controls operations with a demonstrated pattern of willful violations of the Kentucky program, SMCRA, or any other surface coal mining regulatory program, that are of such nature and duration that may result in irreparable damage to the environment as to indicate an intent not to comply with the Kentucky program, SMCRA, or with any other surface coal mining regulatory program. Based upon the plain language contained in both SMCRA and corresponding Kentucky statutes there is an additional basis for removing the required amendment. Both the Federal and Kentucky provisions refer to violations that cause irreparable damage to the environment. These types of violations, by definition, can never be abated, because ``irreparable'' means ``[i]ncapable of being rectified, repaired, or corrected.'' Webster's II New Riverside University Dictionary 645 (1984). Violators of SMCRA, or of other state programs' provisions, whose violations cause irreparable damage would remain forever blocked on the AVS. Thus, they would be permanently blocked in Kentucky, regardless of the state in which the violations occurred, since Kentucky faithfully follows AVS [[Page 63119]] recommendations. Should it later be determined that Kentucky is not faithfully following AVS requirements as outlined in the MOU, OSMRE will take appropriate corrective action. For these reasons, OSMRE concludes the Kentucky program is no less stringent than SMCRA and no less effective than the promulgated regulations thereunder, at 30 CFR 774.11(c). Specifically, Kentucky Revised Statute Annotated Sec. Sec. 350.085 and 350.060(3)(h), and 405 KY Admin. Regs. 8:010 section 13(4), incorporating the corresponding statute by reference, in conjunction with the discussion of the meaning of ``irreparable,'' above, clarify that KYDNR must consider all violations of SMCRA and any law, rule, or regulation in effect for the protection of air or water resources when issuing permits. Thus, OSMRE is removing the required amendment at 30 CFR 917.16(e). In addition, OSMRE approves the removal of the required amendment found at 30 CFR 917.16(h) regarding the Kentucky operator change revision regulations. Previously, OSMRE reviewed a program amendment submitted by Kentucky which proposed to ``established a new category of permit revision for operator changes that do not constitute a transfer, assignment or sale of permit rights.'' OSMRE disapproved that submission as detailed in the January 12, 1993, Federal Register (58 FR 3833), and added a required program amendment in its decision as follows: 30 CFR 917.16(h) By June 14, 1993, Kentucky shall amend its rules at 405 KAR 8:010 Sec. 20(6)(h) by including OSM[RE] as one of the parties to be notified of the cabinet's decision to approve or deny the application for an operator change and to require that the regulatory authority be notified when the approved change is consummated. Historically, OSMRE interpreted the Federal rules as meaning the changes in the operator of the mine--as the term is defined at 30 CFR 701.5--must be processed as a TAS, consistent with 30 CFR part 774. Following OSMRE's interpretation of the holding in Peabody Western Coal Co., v. OSMRE, No. DV 2000-1-PR (June 15, 2000), comments received in response to OSMRE's 2005 proposed rule setting forth revisions to the definition of TAS, and further communications with state regulatory authorities, OSMRE issued a Federal rulemaking, announcing that OSMRE no longer considers a change of operator of a mine as a transfer, assignment, or sale of permit rights. 72 FR 68000 (December 3, 2007). OSMRE concluded that a change of a permittee's owners or controllers does not constitute a TAS because nothing in SMCRA imports the ownership and control concepts of section 510(c) of the Act to the definition of TAS. However, OSMRE made it clear that regulatory authorities may continue to consider the two concepts linked. Kentucky continues to process a change in permittee as a TAS, as detailed in the Federal regulations set forth in 30 CFR part 774. Additionally, as detailed above, Kentucky continues to enter all data concerning a revision of the mine operator in both AVS and the state counterpart, the Kentucky Surface Mining Information System. For these reasons, OSMRE concludes that 405 KY Admin. Regs. 8:010 section 22 renders the Kentucky program no less stringent than SMCRA and no less effective than the promulgated regulations there under. Thus, OSMRE is removing the required amendment at 30 CFR 917.16(h). IV. Summary and Disposition of Comments Public Comments We asked for public comments on the amendment via the Federal Register on September 19, 2012, (77 FR 58053) (Administrative Record No. OSM-2009-0014-001). Neither an extension of the public comment period nor a public hearing or meeting was requested. One comment (Administrative Record No. OSMRE-2009-0014-003) was received from a representative of Kentucky Resource Council (KRC) on October 22, 2012, indicating that the KRC had no comments. The public comment period closed on October 19, 2012. Federal Agency Comments Pursuant to 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, OSMRE is required to request comments on an amendment from various Federal agencies with an actual or potential interest or special expertise related to the Kentucky program. This amendment removes two previously required amendments relative to O&C and TAS. Therefore, no request for comments is required for this amendment as no Federal agency, other than OSMRE has an actual or potential interest or special expertise in the amendment. Moreover, in reviewing Kentucky statutes and regulations relevant to these issues in a December 3, 2007, Federal rulemaking, OSMRE sought appropriate agency review. OSMRE sought the review of the AVSO, the office within OSMRE having specialized knowledge related to the issues within this amendment. State Historical Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP) Pursuant to 30 CFR 732.17(h)(4), OSMRE is required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. As detailed within this final rule, this amendment deals with O&C regulations; therefore, no SHPO or ACHP may be affected by these changes and their comment was not required. Environmental Protection Agency (EPA) Concurrence Pursuant to 30 CFR 732.17(h)(11)(ii), we are required to obtain written concurrence from the EPA for those provisions of the program amendment that relate to air or water quality standards issued 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.). As detailed within this final rule, this amendment deals with O&C regulations; therefore, no water or air quality standards are under review that trigger the requirement for EPA concurrence. V. OSMRE's Decision Based upon the above finding, we approve the removal of two previously required amendments found at 30 CFR 917.16(e) and (h). To implement this decision, we are amending the Federal regulations, at 30 CFR part 917, that codify decisions concerning the Kentucky program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards. VI. Procedural Determinations Executive Order 12630--Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Executive Order 12866--Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866. [[Page 63120]] Executive Order 12988--Civil Justice Reform The Department of Interior has conducted the reviews required by section 3 of Executive Order 12988, and has determined that, to the extent allowable by law, this rule meets the applicable standards of Subsections (a) and (b). However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSMRE. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) 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 CFR parts 730, 731 and 732 have been met. Executive Order 13132--Federalism This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments regarding the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to ``establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.'' Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be ``in accordance with'' the requirements of SMCRA, and Section 503(a)(7) requires that State programs contain rules and regulations ``consistent with'' regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175--Consultation and Coordination With Indian Tribal Government In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Executive Order 13211--Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 requiring agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866, and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1992(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.). Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The 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. In making the determination as to whether this rule would have significant economic impact, the Department relied upon data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. List of Subjects in 30 CFR Part 917 Intergovernmental relations, Surface mining, Underground mining. Dated: September 29, 2015. Thomas D. Shope, Regional Director, Appalachian Region. For the reasons set forth in the preamble, 30 CFR part 917 is amended as follows: PART 917--KENTUCKY 0 1. The authority citation for Part 917 continues to read as follows: Authority: 30 U.S.C. 1201 et seq. Sec. 917.16 [Amended] 0 2. Section 917.16 is amended in the table by removing and reserving paragraphs (e) and (h). [FR Doc. 2015-26478 Filed 10-16-15; 8:45 am] BILLING CODE 4310-05-P
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setting meaningful goals in areas of DEPARTMENT OF THE INTERIOR Kentucky program, including the
academic schooling, vocational Secretary’s findings, the disposition of
education or training, involvements in Office of Surface Mining Reclamation comments, and conditions of approval
self-improvement activity and therapy and Enforcement of the Kentucky program in the May 18,
and his utilization of available resources 1982, Federal Register (47 FR 21434).
to overcome recognized problems. 30 CFR Part 917 You can also find later actions
Achievements in accomplishing goals [SATS No. KY–253–FOR; Docket ID: OSM–
concerning Kentucky’s program and
and efforts put forth in any 2009–0014; S1D1S SS08011000 SX064A000 program amendments at 30 CFR 917.11,
involvements in established programs to 167S180110; S2D2S SS08011000 917.12, 917.13, 917.15, 917.16, and
SX064A000 16X501520] 917.17.
overcome problems are carefully
evaluated. II. Submission of the Proposed
Kentucky Regulatory Program
(vi) Community resources available to Amendment
assist the offender with regard to his AGENCY: Office of Surface Mining OSMRE first promulgated final rules
needs and problems, which will Reclamation and Enforcement (OSMRE), to address O&C and TAS over 20 years
supplement treatment and training Interior. ago. Subsequently, OSMRE published
programs begun in the institution, and ACTION: Final rule; approval of changes to O&C and TAS, some in
be available to assist the offender to amendment. response to Federal Court mandates,
further serve in his efforts to reintegrate culminating in the issuance of Federal
SUMMARY: We are approving an rulemaking on December 3, 2007. 72 FR
himself back into the community and amendment to the Kentucky regulatory
within his family unit as a productive 68000. Specifically, the Federal
program (the Kentucky program) under rulemaking amended definitions
useful individual. the Surface Mining Control and pertaining to ownership, control, and
(5) A prisoner who committed the Reclamation Act of 1977 (SMCRA or the transfer, assignment, or sale of permit
offense of conviction on or before March Act). As a result of OSMRE’s review of rights and OSMRE regulatory provisions
3, 1985 who is not incarcerated as a the Kentucky program, OSMRE has governing: Permit eligibility
parole violator and is serving a determined that two previously required determinations; improvidently issued
maximum sentence of five years or more amendments, 30 CFR 917.16(e) and (h), permits; ownership or control
who was denied parole at their original are to be removed because Kentucky’s challenges; post-permit issuance actions
hearing ordinarily will receive a program, with regard to Ownership and and requirements; transfer, assignment,
rehearing one year after a hearing Control (O&C), and Transfer, or sale of permit rights; application and
Assignment or Sale of Permit Rights permit information; and alternative
conducted by the U.S. Parole
(TAS) is now consistent with SMCRA enforcement.
Commission. In all cases of rehearings,
and the corresponding Federal Prior to the implementation of the
the U.S. Parole Commission may regulations.
establish a rehearing date at any time it December 2007 Federal rulemaking,
DATES: Effective Date: October 19, 2015. OSMRE issued required amendments to
feels such would be proper, regardless
FOR FURTHER INFORMATION CONTACT:
the Kentucky Department of Natural
of the length of sentence involved. No
Robert Evans, Field Office Director, Resources (KYDNR) in 1991 and 1993.
hearing may be set for more than five These previously required amendments
years from the date of the previous Telephone: (859) 260–3904. Email:
bevans@osmre.gov. are codified at 30 CFR 917.16(e), as
hearing. noticed in the September 23, 1991,
SUPPLEMENTARY INFORMATION:
(6) If a prisoner has been previously Federal Register (56 FR 47907), and 30
I. Background on the Kentucky Program
granted a presumptive parole date under II. Submission of the Amendment CFR 917.16(h), as noticed in the January
the Commission’s guidelines in III. OSMRE’s Findings 12, 1993, Federal Register (58 FR 3833),
paragraphs (b) through (m) of this IV. Summary and Disposition of Comments respectively. These previously required
section, the presumptive date will not V. OSMRE’s Decision amendments were established prior to
be rescinded unless the Commission VI. Procedural Determinations OSMRE’s final rulemaking on O&C on
would rescind the date for one of the December 3, 2007, 72 FR 68000. On
I. Background on the Kentucky December 8, 2008, following publication
accepted bases for such action, i.e., new Program
criminal conduct, new institutional in the Federal Register, and resolution
Section 503(a) of the Act permits a of litigation resulting from this
misconduct, or new adverse
State to assume primacy for the rulemaking, the Director of OSMRE
information. regulation of surface coal mining and issued a memorandum to the Regional
(7) Prisoners who have previously reclamation operations on non-Federal Directors to conduct a review of the
been considered for parole under the and non-Indian lands within its borders applicable provisions of all the State
1987 guidelines of the former DC Board by demonstrating that its program programs to ascertain what, if any,
of Parole will continue to receive includes, among other things, ‘‘a State amendments were required to conform
consideration under those guidelines. law which provides for the regulation of to the December 3, 2007, Federal
(8) Decisions resulting from hearings surface coal mining and reclamation rulemaking.
asabaliauskas on DSK5VPTVN1PROD with FRONTMATTER
under this section may not be appealed operations in accordance with the Following the instructions given by
requirements of this Act . . .; and rules the Director, OSMRE’s Lexington Field
to the U.S. Parole Commission.
and regulations consistent with Office (LFO) conducted an evaluation of
Dated: October 13, 2015. regulations issued by the Secretary the Kentucky program to determine if
J. Patricia Wilson Smoot, pursuant to this Act.’’ See U.S.C. 1253 amendments to the Kentucky program
Chairman, U.S. Parole Commission. (a)(1) and (7). On the basis of these were required. Consistent with 30 CFR
[FR Doc. 2015–26463 Filed 10–16–15; 8:45 am] criteria, the Secretary of the Interior 732.17, LFO reviewed the Kentucky
conditionally approved the Kentucky program, comparing it to the current
BILLING CODE 4410–31–P
program on May 18, 1982. You can find Federal regulations using a standard no
background information on the less stringent than SMCRA and no less
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![63118 Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Rules and Regulations
effective than the Federal regulations, in therein, in a manner no less stringent any decisions regarding permitting,
meeting the requirements of the Act. than SMCRA and no less effective than agreed to perform an independent
This review included review of the the Federal regulation counterpart review of an applicant’s history, then
determinations in 1991, and 1993, found at 30 CFR part 774; and (b) ‘‘query AVS to determine whether the
codified at 30 CFR 917.16(e) and (h), Kentucky is implementing 405 KAR applicant is linked to a violator through
that Kentucky must submit two required 8:010 section 13, in accordance with the ownership and control.’’ MOU, page 5,
amendments relative to O&C. As part of Federal O&C regulations codified into paragraph IV(C)(5).
the evaluation, LFO conducted several law on December 3, 2007, as indicated While evaluating the impact of the
meetings with KYDNR and considered in the Federal Register (72 FR 68000). 2007 Federal rulemaking on O&C and
whether the Kentucky program was OSMRE approves the removal of the TAS, OSMRE concluded that KYDNR is
being implemented in conformity with required amendment found at 30 CFR appropriately relying on AVS data when
current Federal regulations. 917.16 (e) regarding the Kentucky O&C determining to block or approve a
During the review, LFO solicited regulations. KYDNR implements the permit in accordance with applicable
assistance from the OSMRE Applicant Kentucky program in a manner that is provisions of SMCRA, Federal
Violator System Office (AVSO). The no less stringent than SMCRA and no regulations and the MOU, consistent
AVSO is a division of OSMRE that less effective than the regulations found with 30 CFR parts 773 and 774. Further,
assists regulatory authorities in making at 30 CFR part 774. Previously, via a OSMRE’s AVSO independently verified
permit eligibility determinations using Federal Register notice dated that KYDNR utilizes the nationwide
the Applicant Violator System (AVS) as September 23, 1991, (56 FR 47907), AVS on a daily basis to determine if
required under section 510(c) of SMCRA OSMRE reviewed and found a program Kentucky applicants are permit eligible
for applicants of coal mining permits. amendment submitted by Kentucky to prior to issuing any permit, evidencing
Subsequent to programmatic review be less effective than the Federal conformity with the MOU. Additionally,
by LFO and independent review by the counterpart. Among other things, as part of the AVS review, it was
AVSO, LFO requested removal of the Kentucky proposed to add a regulation determined that Kentucky denies any
two previously required amendments which prohibited ‘‘the issuance of a permit application associated with any
because LFO and AVSO independently permit if the applicant, operator or unabated Federal violations or
verified and determined that Kentucky anyone who owns or controls the violations issued by other states.
has proper statutory authority to applicant, controls or has controlled any Moreover, OSMRE concludes Kentucky
implement the requisite O&C and TAS surface coal mining and reclamation is supplying sufficient information to
standards in a manner that is no less operation with a demonstrated pattern AVS, and KYDNR is implementing
stringent than provisions in SMCRA of willful violations of KRS chapter 350 Kentucky statutes and regulations
found at 30 U.S.C. 1260(c), and no less and regulations adopted thereto. . . .’’ consistent with SMCRA and the Federal
effective than the Federal regulations at OSMRE disapproved the proposed regulations.
30 CFR 778.14. Further, LFO and AVSO revisions and required Kentucky to OSMRE determines the current O&C
determined Kentucky is appropriately further amend its program to correct the program in Kentucky is implemented in
implementing the Federal O&C and TAS deficiencies identified, adding the a manner that ensures that no permit
rules as required by the Federal will be issued to an applicant who owns
following required program amendment:
rulemaking on December 3, 2007. or controls operations with a
OSMRE announced the proposed 30 CFR 917.16(e). By March 23, 1992, demonstrated pattern of willful
decision, which would eliminate the Kentucky shall amend its rules at 405 KAR violations of the Kentucky program,
previously required amendments, in the 8:010 § 13(4) to include violations of Federal SMCRA, or any other surface coal
regulatory programs and other State
September 19, 2012, Federal Register mining regulatory program, that are of
regulatory programs, not just violations of
(77 FR 58053). In the same document, KRS chapter 350 and regulations adopted such nature and duration that may
OSMRE opened the public comment thereto. result in irreparable damage to the
period and provided an opportunity for environment as to indicate an intent not
a public hearing or meeting. OSMRE did At the time the 1991 required to comply with the Kentucky program,
not hold a public hearing or meeting amendment was authored, OSMRE took SMCRA, or with any other surface coal
because neither was requested. The the position that Kentucky was solely mining regulatory program.
public comment period ended on and independently responsible for the Based upon the plain language
October 19, 2012. OSMRE received one collection of violation data in Kentucky contained in both SMCRA and
comment from the Kentucky Resources and other states for the purpose of corresponding Kentucky statutes there
Council (KRC), an environmental determining if it was necessary to deny is an additional basis for removing the
advocacy group. a Kentucky permit applicant a surface required amendment. Both the Federal
mining permit, based on outstanding and Kentucky provisions refer to
III. OSMRE’s Findings violations of SMCRA or certain other violations that cause irreparable damage
Following are the findings made environmental protection statutes and to the environment. These types of
concerning the amendment under rules. OSMRE’s former position did not violations, by definition, can never be
SMCRA and the Federal regulations at account for the Memorandum of abated, because ‘‘irreparable’’ means
30 CFR 732.15 and 732.17. OSMRE is Understanding (MOU) between OSMRE ‘‘[i]ncapable of being rectified, repaired,
asabaliauskas on DSK5VPTVN1PROD with FRONTMATTER
approving the removal of two and the Commonwealth of Kentucky or corrected.’’ Webster’s II New
previously required amendments to the that provides, among other things: Riverside University Dictionary 645
Kentucky program, found at 30 CFR OSMRE shall develop, maintain, and (1984). Violators of SMCRA, or of other
917.16(e) and (h), due to the following: provide for the use of Kentucky the AVS, state programs’ provisions, whose
(a) After significant review, OSMRE has which contains or will contain ownership violations cause irreparable damage
determined that Kentucky has statutory and control data and violator information to would remain forever blocked on the
authority to implement 405 Kentucky assist Kentucky in meeting the mandated AVS. Thus, they would be permanently
Administrative Regulations (KAR) 8:010 requirements under KRS 350.085(6). blocked in Kentucky, regardless of the
section 13, when coupled with the In addition to the required obligations state in which the violations occurred,
statutes and regulations referenced of OSMRE, Kentucky, prior to making since Kentucky faithfully follows AVS
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![Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Rules and Regulations 63119
recommendations. Should it later be ownership and control concepts of State Historical Preservation Officer
determined that Kentucky is not section 510(c) of the Act to the (SHPO) and the Advisory Council on
faithfully following AVS requirements definition of TAS. However, OSMRE Historic Preservation (ACHP)
as outlined in the MOU, OSMRE will made it clear that regulatory authorities
take appropriate corrective action. may continue to consider the two Pursuant to 30 CFR 732.17(h)(4),
For these reasons, OSMRE concludes concepts linked. Kentucky continues to OSMRE is required to request comments
the Kentucky program is no less process a change in permittee as a TAS, from the SHPO and ACHP on
stringent than SMCRA and no less as detailed in the Federal regulations set amendments that may have an effect on
effective than the promulgated historic properties. As detailed within
forth in 30 CFR part 774. Additionally,
regulations thereunder, at 30 CFR this final rule, this amendment deals
as detailed above, Kentucky continues
774.11(c). Specifically, Kentucky with O&C regulations; therefore, no
Revised Statute Annotated §§ 350.085 to enter all data concerning a revision of
the mine operator in both AVS and the SHPO or ACHP may be affected by these
and 350.060(3)(h), and 405 KY Admin. changes and their comment was not
Regs. 8:010 section 13(4), incorporating state counterpart, the Kentucky Surface
required.
the corresponding statute by reference, Mining Information System.
in conjunction with the discussion of For these reasons, OSMRE concludes Environmental Protection Agency (EPA)
the meaning of ‘‘irreparable,’’ above, that 405 KY Admin. Regs. 8:010 section Concurrence
clarify that KYDNR must consider all 22 renders the Kentucky program no
violations of SMCRA and any law, rule, Pursuant to 30 CFR 732.17(h)(11)(ii),
less stringent than SMCRA and no less
or regulation in effect for the protection we are required to obtain written
effective than the promulgated
of air or water resources when issuing concurrence from the EPA for those
regulations there under. Thus, OSMRE provisions of the program amendment
permits. Thus, OSMRE is removing the is removing the required amendment at
required amendment at 30 CFR that relate to air or water quality
30 CFR 917.16(h). standards issued under the authority of
917.16(e).
In addition, OSMRE approves the IV. Summary and Disposition of the Clean Water Act (33 U.S.C. 1251 et
removal of the required amendment Comments seq.) or the Clean Air Act (42 U.S.C.
found at 30 CFR 917.16(h) regarding the 7401 et seq.). As detailed within this
Kentucky operator change revision Public Comments final rule, this amendment deals with
regulations. Previously, OSMRE O&C regulations; therefore, no water or
We asked for public comments on the
reviewed a program amendment air quality standards are under review
amendment via the Federal Register on
submitted by Kentucky which proposed that trigger the requirement for EPA
to ‘‘established a new category of permit September 19, 2012, (77 FR 58053)
(Administrative Record No. OSM–2009– concurrence.
revision for operator changes that do not
constitute a transfer, assignment or sale 0014–001). Neither an extension of the V. OSMRE’s Decision
of permit rights.’’ OSMRE disapproved public comment period nor a public
that submission as detailed in the hearing or meeting was requested. One Based upon the above finding, we
January 12, 1993, Federal Register (58 comment (Administrative Record No. approve the removal of two previously
FR 3833), and added a required program OSMRE–2009–0014–003) was received required amendments found at 30 CFR
amendment in its decision as follows: from a representative of Kentucky 917.16(e) and (h).
30 CFR 917.16(h) By June 14, 1993, Resource Council (KRC) on October 22, To implement this decision, we are
Kentucky shall amend its rules at 405 KAR 2012, indicating that the KRC had no amending the Federal regulations, at 30
8:010 § 20(6)(h) by including OSM[RE] as one comments. The public comment period CFR part 917, that codify decisions
of the parties to be notified of the cabinet’s closed on October 19, 2012. concerning the Kentucky program. We
decision to approve or deny the application find that good cause exists under 5
for an operator change and to require that the Federal Agency Comments
regulatory authority be notified when the U.S.C. 553(d)(3) to make this final rule
approved change is consummated. Pursuant to 30 CFR 732.17(h)(11)(i) effective immediately. Section 503(a) of
and section 503(b) of SMCRA, OSMRE SMCRA requires that the State’s
Historically, OSMRE interpreted the
is required to request comments on an program demonstrate that the State has
Federal rules as meaning the changes in
amendment from various Federal the capability of carrying out the
the operator of the mine—as the term is
defined at 30 CFR 701.5—must be agencies with an actual or potential provisions of the Act and meeting its
processed as a TAS, consistent with 30 interest or special expertise related to purposes. Making this rule effective
CFR part 774. Following OSMRE’s the Kentucky program. This amendment immediately will expedite that process.
interpretation of the holding in Peabody removes two previously required SMCRA requires consistency of State
Western Coal Co., v. OSMRE, No. DV amendments relative to O&C and TAS. and Federal standards.
2000–1–PR (June 15, 2000), comments Therefore, no request for comments is VI. Procedural Determinations
received in response to OSMRE’s 2005 required for this amendment as no
proposed rule setting forth revisions to Federal agency, other than OSMRE has Executive Order 12630—Takings
the definition of TAS, and further an actual or potential interest or special
asabaliauskas on DSK5VPTVN1PROD with FRONTMATTER
communications with state regulatory This rule does not have takings
expertise in the amendment. Moreover, implications. This determination is
authorities, OSMRE issued a Federal in reviewing Kentucky statutes and
rulemaking, announcing that OSMRE no based on the analysis performed for the
regulations relevant to these issues in a counterpart Federal regulation.
longer considers a change of operator of December 3, 2007, Federal rulemaking,
a mine as a transfer, assignment, or sale OSMRE sought appropriate agency Executive Order 12866—Regulatory
of permit rights. 72 FR 68000 (December review. OSMRE sought the review of the Planning and Review
3, 2007). OSMRE concluded that a AVSO, the office within OSMRE having
change of a permittee’s owners or This rule is exempted from review by
specialized knowledge related to the
controllers does not constitute a TAS the Office of Management and Budget
issues within this amendment.
because nothing in SMCRA imports the (OMB) under Executive Order 12866.
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![63120 Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Rules and Regulations
Executive Order 12988—Civil Justice Energy Effects for a rule that is (1) that the State submittal, which is the
Reform considered significant under Executive subject of this rule, is based upon
The Department of Interior has Order 12866, and (2) likely to have counterpart Federal regulations for
conducted the reviews required by significant adverse effect on the supply, which an analysis was prepared and a
section 3 of Executive Order 12988, and distribution, or use of energy. Because determination made that the Federal
has determined that, to the extent this rule is exempt from review under regulation was not considered a major
allowable by law, this rule meets the Executive Order 12866, and is not rule.
applicable standards of Subsections (a) expected to have a significant adverse
Unfunded Mandates
and (b). However, these standards are effect on the supply, distribution, or use
not applicable to the actual language of of energy, a Statement of Energy Effects This rule will not impose an
State regulatory programs and program is not required. unfunded mandate on State, local, or
amendments because each program is tribal governments or the private sector
National Environmental Policy Act of $100 million or more in any given
drafted and promulgated by a specific
State, not by OSMRE. Under sections This rule does not require an year. This determination is based upon
503 and 505 of SMCRA (30 U.S.C. 1253 environmental impact statement the fact that the State submittal, which
and 1255) and the Federal regulations at because section 702(d) of SMCRA (30 is the subject of this rule, is based upon
30 CFR 730.11, 732.15, and U.S.C. 1992(d)) provides that agency counterpart Federal regulations for
732.17(h)(10), decisions on proposed decisions on proposed State regulatory which an analysis was prepared and a
State regulatory programs and program program provisions do not constitute determination made that the Federal
amendments submitted by the States major Federal actions within the regulation did not impose an unfunded
must be based solely on a determination meaning of section 102(2)(C) of the mandate.
of whether the submittal is consistent National Environmental Policy Act (42
U.S.C. 4332(2)(C)). List of Subjects in 30 CFR Part 917
with SMCRA and its implementing
Federal regulations and whether the Intergovernmental relations, Surface
Paperwork Reduction Act
other requirements of 30 CFR parts 730, mining, Underground mining.
This rule does not contain
731 and 732 have been met. Dated: September 29, 2015.
information collection requirements that
Thomas D. Shope,
Executive Order 13132—Federalism require approval by OMB under the
Paperwork Reduction Act (44 U.S.C. Regional Director, Appalachian Region.
This rule does not have Federalism For the reasons set forth in the
implications. SMCRA delineates the 3507 et seq.).
preamble, 30 CFR part 917 is amended
roles of the Federal and State Regulatory Flexibility Act as follows:
governments regarding the regulation of
surface coal mining and reclamation The Department of the Interior
certifies that this rule will not have a PART 917—KENTUCKY
operations. One of the purposes of
SMCRA is to ‘‘establish a nationwide significant economic impact on a
■ 1. The authority citation for Part 917
program to protect society and the substantial number of small entities
continues to read as follows:
environment from the adverse effects of under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). The State submittal, Authority: 30 U.S.C. 1201 et seq.
surface coal mining operations.’’ Section
503(a)(1) of SMCRA requires that State which is the subject of this rule, is based § 917.16 [Amended]
laws regulating surface coal mining and upon counterpart Federal regulations for
which an economic analysis was ■ 2. Section 917.16 is amended in the
reclamation operations be ‘‘in table by removing and reserving
accordance with’’ the requirements of prepared and certification made that
such regulations would not have a paragraphs (e) and (h).
SMCRA, and Section 503(a)(7) requires [FR Doc. 2015–26478 Filed 10–16–15; 8:45 am]
that State programs contain rules and significant economic effect upon a
regulations ‘‘consistent with’’ substantial number of small entities. In BILLING CODE 4310–05–P
regulations issued by the Secretary making the determination as to whether
pursuant to SMCRA. this rule would have significant
economic impact, the Department relied DEPARTMENT OF THE INTERIOR
Executive Order 13175—Consultation upon data and assumptions for the
and Coordination With Indian Tribal Office of Surface Mining Reclamation
counterpart Federal regulations. and Enforcement
Government
Small Business Regulatory Enforcement
In accordance with Executive Order Fairness Act 30 CFR Part 935
13175, we have evaluated the potential
effects of this rule on Federally- This rule is not a major rule under 5 [OH–254–FOR; Docket ID: OSM–2012–0012;
recognized Indian tribes and have U.S.C. 804(2), the Small Business S1D1S SS08011000 SX066A000
Regulatory Enforcement Fairness Act. 156S180110; S2D2S SS08011000
determined that the rule does not have
This rule: (a) Does not have an annual SX066A000 15XS501520]
substantial direct effects on one or more
Indian tribes, on the relationship effect on the economy of $100 million;
Ohio Regulatory Program
between the Federal government and (b) Will not cause a major increase in
asabaliauskas on DSK5VPTVN1PROD with FRONTMATTER
Indian tribes, or on the distribution of costs or prices for consumers, AGENCY: Office of Surface Mining
power and responsibilities between the individual industries, Federal, State, or Reclamation and Enforcement, Interior.
Federal government and Indian tribes. local government agencies, or ACTION: Final rule; approval of
geographic regions; and (c) Does not amendment and addition of a required
Executive Order 13211—Regulations have significant adverse effects on
That Significantly Affect the Supply, regulatory program amendment.
competition, employment, investment,
Distribution, or Use of Energy productivity, innovation, or the ability SUMMARY: We are approving, with one
On May 18, 2001, the President issued of U.S.-based enterprises to compete additional requirement, an amendment
Executive Order 13211 requiring with foreign-based enterprises. This to the Ohio regulatory program (the
agencies to prepare a Statement of determination is based upon the fact Ohio program) under the Surface
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Document Created: 2015-12-15 08:35:26
Document Modified: 2015-12-15 08:35:26
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule; approval of amendment. | |
| Contact | Robert Evans, Field Office Director, Telephone: (859) 260-3904. Email: [email protected] | |
| FR Citation | 80 FR 63117 | |
| CFR Associated | Intergovernmental Relations; Surface Mining and Underground Mining |
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