SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

II. Submission of the Amendment

III. OSM's Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. Statutory and Executive Order Reviews

I. Background on the Kentucky Program

Subject to OSM's oversight, 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, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See30 U.S.C. 1253(a)(1) and (7).

On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program effective 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 the Kentucky program and program amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Amendment

By letter dated May 18, 2020, (Administrative Record No. KY-2005), the Kentucky Energy and Environment Cabinet (KEEC or Cabinet), Department of Natural Resources sent OSM an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). Through this submission, Kentucky seeks to repeal its administrative regulation at Title 405 of the Kentucky Administrative Regulations (KAR), Chapter 026, Regulation 001, 405 KAR 26:001 (Operation of two (2) acres or less), because such operations are no longer allowed in the Commonwealth due to a change in State law, discussed below. Likewise, Kentucky seeks to remove or revise provisions that relate to its interim program regulations, formerly at 405 KAR Chapters 1 and 3, which Kentucky repealed in 2018. See 44 Ky.R. 2708-2711 (June 1, 2018). Kentucky's repeal of its interim regulations did not require OSM approval because the interim regulations were by definition not part of the permanent regulatory program ( printed page 29899) conditionally approved in 1982. OSM separately confirmed with Kentucky that it has no remaining interim program permits. Finally, Kentucky also made minor editorial revisions to the administrative regulations that do not alter the meaning of the content but rather clarify the regulations and achieve compliance with the legislative drafting requirements of Chapter 13A of the Kentucky Revised Statutes (KRS). The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES or at www.regulations.gov.

OSM announced receipt of the proposed amendment in the June 3, 2021, Federal Register (86 FR 29709) (Administrative Record KY-2005). In the same document, the public comment period was opened and an opportunity for a public hearing or meeting on the adequacy of the amendment was provided. No public hearing or meeting was held because none was requested. The public comment period ended on July 6, 2021. No comments were received.

III. OSM's Findings

OSM makes the following findings concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Kentucky included in its submission revisions to 405 KAR 5:002 (Definitions for 405 KAR Chapter 5) and 405 KAR 5:032 (Permit requirements), which relate to Kentucky's regulation of the surface effects of noncoal mining. A State's noncoal mining statutes and regulations are outside the scope of our purview under SMCRA and so OSM did not consider these revisions part of this program amendment. Kentucky also made non-substantive editorial revisions throughout its program amendment, such as inserting general references to its regulations at “405 KAR Chapters 7-24”, replacing the word “must” with the word “shall”, replacing several uses of the word “may” with the word “could”, adding new subsection and paragraph numbering to its existing regulations, and rearranging subordinate clauses within a sentence. No specific findings were made about all these editorial changes, which are not otherwise referenced in this notice, but we state here that those changes do not impact the compliance of Kentucky's approved program with SMCRA. OSM also will not specifically address revisions Kentucky makes to the prefatory language of each substantive rule entitled, “Necessity, Function, and Conformity.” Those provisions simply annotate the statutory authority and purpose for each rule and have no operative effect on the Kentucky program. OSM is approving the amendment as specifically described below.

A. 405 KAR 7:040. General Obligations of Operators and Permittees

Kentucky deleted Section 4 (Existing Structures on Areas Sought to be Permitted) in its entirety and renumbered remaining sections accordingly. Kentucky likewise removed references to this provision in Section 5 (Hazard Classification for Impoundments) and Section 9 (regarding approximate original contour), now numbered Sections 4 and 8. From Section 7 (Coal Exploration), now numbered Section 6, Kentucky deleted references to a date specified in Section 11 after which any person conducting coal exploration must file a notice of intent to explore or obtain approval under 405 KAR 8:020, and two months after which any person conducting coal exploration must comply with the performance standards. Kentucky also revised Section 10 (Certifications by Registered Professional Engineers), now numbered Section 9, to describe professional engineers as “licensed” rather than “registered”, and eliminated subsection (7), which required that certification by a professional engineer must be made in the form prescribed by KEEC and allowed KEEC to reject any certification that is not made in such form.

OSM Findings: The Federal regulations at 30 CFR 701.5 define the term existing structure as “a structure or facility used in connection with or to facilitate surface coal mining and reclamation operations for which construction began prior to the approval of the State program. . . .” Kentucky defines the term likewise at 405 KAR 7:001(26), with construction having had to begin before January 18, 1983. The section that Kentucky proposes to eliminate under 405 KAR 7:040 was a part of Kentucky's interim program and implemented the Cabinet's limited discretion to permit pre-primacy structures that did not initially meet certain design or performance standards, as provided under SMCRA's regulations at 30 CFR 701.11(e)-(f) and 773.15(f) (formerly § 786.21). See47 FR 21404, 21414 (May 18, 1982) (explaining OSM's removal of conditions on Kentucky's original program approval relevant to existing structures). We confirmed with the Cabinet that Kentucky's elimination of this provision means that all structures must meet the design and performance standards of its approved permanent program pursuant to 405 KAR 8:010, Section 14(10), which in turn requires that the existing structures comply with section 25 of either 405 KAR 8:030 (Surface coal mining permits) and 8:040 (Underground coal mining permits). Section 25 of those rules, which we have already approved as part of Kentucky's program, require that existing structures meet the performance standards of Kentucky's approved permanent program at 405 KAR Chapters 16 through 20 or provide a compliance plan with monitoring through the period of modification or reconstruction required to meet those performance standards. We also discuss below a corresponding revision to Section 25 of 405 KAR 8:030 to remove a reference to the interim standards; a similar provision did not exist in 405 KAR 8:040. We note that Kentucky has not proposed deleting 405 KAR 8:010, Section 15 (Criteria for Application Approval or Denial Regarding Existing Structures). This provision requires compliance with 405 KAR 7:040, Section 4. Our approval of Kentucky's deletion of Section 4 renders 405 KAR 8:030, Section 15 inoperative, but does not affect the requirement that existing structures meet the performance standards of Kentucky's approved permanent program.

Regarding coal exploration under Section 7, the date to which this provision cites under Section 11 is unknown because 405 KAR 7:040 has never included a Section 11 since its promulgation in 1982. See 8 Ky.R. 1460, 1470 (June 1, 1982). Nonetheless, Section 6, as amended, requires all persons conducting coal explorations to meet the program's requirements, and so we consider Kentucky's elimination of the non-existent reference date editorial. Regarding professional engineers, the Federal regulations refer to qualified, registered, professional engineers. See, e.g.,30 CFR 780.14, 817.49. We have never articulated a distinction between registered engineers and licensed engineers, and do not believe one exists. We interpret both terms to mean that the professional engineer is appropriately credentialed under State law with whichever entity registers or licenses individuals in that profession, and so Kentucky's revisions have no substantive effect on the regulation. Similarly, while the Federal regulations do in some instances specify the information a certification must contain, they do not specify beyond that, the form in which the certification must appear. Kentucky's removal of Section 6(7) has no substantive effect on the remaining provisions of Kentucky's program that require the certifications to ( printed page 29900) contain certain required information. Therefore, we approve all of Kentucky's revisions to 405 KAR 7:040.

B. 405 KAR 7:050. Coal Processing Waste Disposal Sites

In Section 2 (Reports), Kentucky deleted introductory language indicating that the regulation would begin to require reports within 60 days of September 21, 1982. Kentucky also divided subsection (2) into three subordinate paragraphs lettered (a)-(c), and revised paragraph (b) to state that, if the failure of a coal waste disposal facility could cause damage to life, property, or the environment, then KEEC shall require operators to submit additional plans, analysis, investigations or testing necessary to determine the stability of the facility. The previous language stated that KEEC may, on a case-by-case basis and at any time, require additional submissions under those conditions. In Section 5(2), Kentucky again replaced the term registered with the term licensed in describing professional engineers.

OSM Findings: Kentucky's deletion of the effective date, which indicated the transition from its pre-primacy program to its approved SMCRA primacy program, has no substantive effect on the remaining language. We find that Kentucky's revision to Section 2(2)(b) removes KEEC's discretion to require additional investigations and reports necessary to determine the stability of these facilities, thereby making the regulation more stringent than its current form and as effective as the Federal regulations at 30 CFR 816.81(d) and 817.81(d). Finally, we incorporate our findings above regarding licensed professional engineers, and we approve these revisions to 405 KAR 7:050.

C. 405 KAR 8:010. General Provisions for Permits

Kentucky deleted subsection (d) of Section 11 (Permit conferences), which specified that 405 KAR 1:090 (Use of explosives) and 1:110 (Revegetation) do not apply to the conduct of the permit conferences held under this section.

OSM Findings: Kentucky repealed its interim regulations, discussed above, which included the repeal of 405 KAR 1:090 and 1:110. Therefore, a reference to these regulations is no longer necessary, the deletion of subsection (d) has no effect on the remaining provisions of the rule, and we approve this revision.

D. 405 KAR 8:030. Surface Coal Mining Permits

From subsection (d) of Section 25 (MRP; Existing Structures), Kentucky deleted language allowing the permit applicant the alternative of showing that the existing structure meets the interim performance standards of 405 KAR Chapter 1.

OSM Findings: Kentucky's revision requires permit applicants to demonstrate that existing structures meet the performance standards of 405 KAR Chapters 16-20, which are part of Kentucky's approved program. Therefore, we approve this revision.

E. 405 KAR 10:050. Bond Forfeiture

In Section 5(2), which governs the return of unused forfeited bond funds, Kentucky revised a citation used to indicate interim permits, substituting a reference to 405 KAR Chapter 1 or 3 with a reference to the Federal initial program regulations at 30 CFR part 715.

OSM Findings: Considering Kentucky's repeal of its interim program regulations at 405 KAR Chapters 1 and 3, we find that Kentucky's citation to the Federal initial program regulations at 30 CFR part 715 to be an adequate substitute to indicate that a provision refers to permits issued under Kentucky's interim program. The revision does not otherwise affect Kentucky's implementation of 405 KAR 10:050, and so we approve it.

F. 405 KAR 16:100 and 18:100. Permanent and Temporary Impoundments

Kentucky revised Section 1(10)(b) of both rules, which relate to all impoundments other than those subject to 30 CFR 77.216, or Class B (moderate hazard) and C (high hazard) impoundments, to add that inspections may be required more than quarterly based on evidence of structural weakness or hazardous conditions. Kentucky also added Section 1(12) to each rule, requiring the maintenance of impoundments to include cutting vegetative growth where necessary to facilitate inspection and repairs, cleaning ditches and spillways, and removing combustible material from the surface other than that used for stability, such as mulch or dry vegetation.

OSM Findings: The Federal regulations at 30 CFR 816.49(a)(12) require these impoundments to be examined quarterly, but the Federal regulations neither specify under what circumstances examinations may be required more than quarterly nor do they impose the specific impoundment maintenance requirements Kentucky included in subsection (12). Kentucky's revisions add detail not required by the Federal regulations and so are no less effective at meeting the requirements of SMCRA. Therefore, we approve these revisions.

G. 405 KAR 16:210 and 18:220. Postmining Land Use Capability

Kentucky divided Section 2(2) of both rules into two subordinate paragraphs (a) and (b). In paragraph (a), Kentucky eliminated a reference to land not reclaimed in compliance with 405 KAR Chapters 1 or 3 (its interim program), leaving the reference to apply only to land not reclaimed in compliance with Chapters 7 through 24 (its approved program).

OSM Findings: Kentucky's revisions reflect the repeal of its interim program regulations and that all regulated land either be reclaimed in compliance with its approved program or otherwise comply with this rule. In other words, this reference is no longer necessary. Therefore, the revisions have no effect on Kentucky's approved program and we approve them.

H. 405 KAR 20:040. Prime Farmland

In Section 6(3), Kentucky revised a citation used to indicate interim permits, substituting a reference to 405 KAR 1:250 with a reference to the Federal initial program regulations at 30 CFR part 715.

OSM Findings: As we noted above, considering Kentucky's repeal of its interim program regulations at 405 KAR Chapters 1 and 3, we find that Kentucky's citation to the Federal initial program regulations at 30 CFR part 715 to be an adequate substitute to indicate that a provision refers to permits issued under Kentucky's interim program.

I. 45 KAR 26:011 Repeal of 405 KAR 26:001.

Repeals the section that allowed for operations on two (2) acres or less.

OSM Findings: Kentucky had previously sought approval to repeal the statutory provision at KRS 350.060(12) that authorized the two-acre exemption, and we approved that repeal in a program amendment docketed at SATS No. KY-250-FOR (Administrative Record No. KY-1642). See71 FR 54586, 54587 (Sept. 18, 2006). Therefore, we approve Kentucky's repeal of this related implementing regulation.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment, but none were received.

Federal Agency Comments

On June 26, 2020, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the ( printed page 29901) amendment from various Federal agencies with an actual or potential interest in the Kentucky program (Administrative Record No. KY-2005). We did not receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from 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.). None of the revisions that Kentucky proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on June 26, 2020, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. KY-2005). The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On June 26, 2020, we requested comments on Kentucky amendment (Administrative Record No. KY-2005). We did not receive comments from the SHPO or ACHP.

V. OSM's Decision

Based on the above findings, we are approving the Kentucky amendment sent to us on May 18, 2020 (Administrative Record No. KY-2005).

To implement this decision, we are amending the Federal regulations at 30 CFR part 917 that codify decisions concerning the Kentucky state program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication.

VI. Statutory and Executive Order Reviews

Executive Order 12630—Governmental Actions and Interference With Constitutionally Protected Property Rights

This rule would not result in a taking of private property or otherwise have taking implications that would result in private property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required. This determination is based on an analysis of the corresponding Federal regulations.

Executive Order 12866—Regulatory Planning and Review and Executive Order 13563—Improving Regulation and Regulatory Review

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance dated October 12, 1993 (OMB Memo M-94-3), the approval of State program amendments is exempted from OMB review under Executive Order 12866.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has reviewed this rule as required by Section 3 of Executive Order 12988. The Department determined that this Federal Register document meets the criteria of Section 3 of Executive Order 12988, which is intended to ensure that the agency review its legislation and proposed regulations to eliminate drafting errors and ambiguity; that the agency write its legislation and regulations to minimize litigation; and that the agency's legislation and regulations provide a clear legal standard for affected conduct rather than a general standard, and promote simplification and burden reduction. Because Section 3 focuses on the quality of Federal legislation and regulations, the Department limited its review under this Executive Order to the quality of this Federal Register document and to changes to the Federal regulations. The review under this Executive Order did not extend to the language of the Kentucky regulatory program or to the amendment that Kentucky drafted.

Executive Order 13132—Federalism

This rule has potential Federalism implications as defined under Section 1(a) of Executive Order 13132. Executive Order 1312 directs agencies to “grant the States the maximum administrative discretion possible” with respect to Federal statutes and regulations administered by the States. Kentucky, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the state level. This rule approves an amendment to the Kentucky program submitted and drafted by the State and thus is consistent with the direction to provide maximum administrative discretion to States.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on the distribution of power and responsibilities between the Federal government and Tribes. The basis for this determination is that our decision on the Kentucky program does not include Indian lands as defined by SMCRA or other Tribal lands and it does not affect the regulation of activities on Indian lands or other Tribal lands. Indian lands under SMCRA are regulated independently under the applicable, Federal Indian program. The Department's consultation policy also acknowledges that our rules may have Tribal implications where the State proposing the amendment encompasses ancestral lands in areas with mineable coal. We are currently working to identify and engage appropriate Tribal stakeholders to devise a constructive approach for consulting on these amendments.

Executive Order 13211—Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a 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 a significant energy action under the definition in Executive Order 13211, a Statement of Energy Effects is not required.

National Environmental Policy Act

Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d), respectively) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5(A), State program amendments are not 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 include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a ( printed page 29902) submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required.

Regulatory Flexibility Act

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. 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.

Congressional Review Act

This rule is not a major rule under 5 U.S.C. 804(2). 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 on an analysis of the corresponding Federal regulations, which were determined not to constitute a major rule.

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate of State, local, or Tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to impose an unfunded mandate. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

For the reasons set out in the preamble, 30 CFR part 917 is amended as set forth below:

91 FR 29898