Rule2022-09982
Kentucky Regulatory Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 10, 2022
Effective
June 9, 2022
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving, subject to certain limitations discussed below, an amendment to the Kentucky regulatory program (Kentucky program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The regulatory provisions we are approving establish new bond requirements for providing sufficient financial assurances for the long-term treatment of unanticipated pollutional discharges at permitted sites. Consequently, we are removing a required amendment that we imposed in 2018 regarding financial assurance for the long-term treatment of discharges. We are also approving revisions to other various bond requirements.
Full Text
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<title>Federal Register, Volume 87 Issue 90 (Tuesday, May 10, 2022)</title>
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[Federal Register Volume 87, Number 90 (Tuesday, May 10, 2022)]
[Rules and Regulations]
[Pages 27938-27943]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-09982]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[SATS No. KY-261-FOR; Docket ID: OSM-2019-0013; SIDIS SS08011000
SX064A000 222S180110; S2D2S SS08011000 SX064A000 22XS501520]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment, and removal of a required
amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving, subject to certain limitations discussed below,
an amendment to the Kentucky regulatory program (Kentucky program)
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or
the Act). The regulatory provisions we are approving establish new bond
requirements for providing sufficient financial assurances for the
long-term treatment of unanticipated pollutional discharges at
permitted sites. Consequently, we are removing a required amendment
that we imposed in 2018 regarding financial assurance for the long-term
treatment of discharges. We are also approving revisions to other
various bond requirements.
DATES: Effective June 9, 2022.
FOR FURTHER INFORMATION CONTACT: Mr. Michael Castle, Field Office
Director, Lexington Field Office, Office of Surface Mining Reclamation
and Enforcement, Telephone: (859) 260-3900, Email: <a href="/cdn-cgi/l/email-protection#8de0eeecfef9e1e8cde2fee0ffe8a3eae2fb"><span class="__cf_email__" data-cfemail="0469676577706861446b776976612a636b72">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
IV. OSMRE's Decision
V. Statutory and Executive Order Reviews
I. Background on the Kentucky Program
Subject to OSMRE'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. See 30 U.S.C. 1253(a)(1) and (7). Based on
these criteria, the Secretary of the Interior conditionally approved
the Kentucky program effective May 18, 1982. You can find background
information on the program, including the Secretary's findings, the
disposition of comments, and conditions of approval 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. The regulatory authority in
Kentucky is Kentucky's Energy and Environment Cabinet (herein referred
to as the Cabinet).
II. Submission of the Amendment
By letter dated November 25, 2019 (Administrative Record No. KY
2003), the Cabinet submitted an amendment to its program under SMCRA
(30 U.S.C. 1201 et seq.). The amendment revises chapter 10:015 of title
405 of the Kentucky Administrative Regulations (KAR), General bonding
provisions. The regulatory provisions at Section 8(7), Bond Rate of
Additional Areas, establish new requirements for the calculation of
additional bond amounts necessary for the long-term treatment of
unanticipated pollutional discharges (hereafter referred to as
``discharges''). Other bond requirements of a non-substantive nature
were also included. See 405 KAR 10, Bond and Insurance Requirements,
subchapter 10:015. The submission is intended to address disapprovals
we made in a 2018 decision regarding the Cabinet's proposed regulations
for the long-term treatment of discharges in a final rule designated
KY-256-FOR (KY-256), see January 29, 2018, Federal Register (83 FR
3948), and the resultant action we required under the authority of 30
CFR 732.17(e) and (f). The required action is codified in the Kentucky
program at 30 CFR 917.16(p), Required regulatory program amendments.
The full text of the program submission is available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
A. Background of Kentucky Program Amendment KY-256--In May 2012, in
accord with 30 CFR 733.12(b), we notified the Cabinet that we had
reason to believe it was not implementing, administering, enforcing,
and maintaining the reclamation bond provisions of its approved program
in a manner that assured ``completion of the [applicable] reclamation
plan,'' as required by section 509(a) of SMCRA, 30 U.S.C. 1259(a),
Performance bonds. The Cabinet responded to this section 733 notice
with three submissions: One in September 2012, another in July 2013,
and a third in December 2013. The first submission was announced in the
Federal Register on February 20, 2013 (78 FR 11796). Subsequently, all
three submissions were combined (and public comment solicited) in a
single Federal Register document, 80 FR 15953 (March 26, 2015), in
which the proposed rule was designated State program amendment KY-256.
As the document explained, KY-256-FOR was intended to address the
deficiencies identified in the section 733 notice.
B. Partial Approval of KY-256--We approved most of the provisions
of KY-256-FOR in a final rule published in the Federal Register on
January 29, 2018 (83 FR 3948). One of the provisions not approved, and
now under consideration in revised form, was subsection 8(7) of 405 KAR
10:015, which consisted of three subsections (8(7)(a), -(b), and -(c)).
If approved, subsection 8(7)(a) would have provided that, for permitted
sites requiring long-term treatment of discharges, the Cabinet must
calculate an additional bond amount based on the estimated annual
treatment cost provided by the permittee and multiplied by twenty
years. Focusing on this twenty-year multiplier, we disapproved the
provision in our January 2018 final rule because the Cabinet had not
demonstrated how this provision would assure that adequate bonding
would be calculated for the long-term treatment of discharges. In doing
so, we reaffirmed that abatement of unanticipated water pollution is an
element of reclamation and noted that a permittee's treatment
obligation may extend in perpetuity. As a result, we found the
provision less stringent than section 509 of SMCRA, 30 U.S.C. 1259, and
less effective than the Federal regulations at 30 CFR part 800 and, on
that basis, declined to approve it. We also declined to approve
subsection 8(7)(b), which would have operated in conjunction with
subsection 8(7)(a) by subjecting the estimate of annual treatment cost
specified in subsection
[[Page 27939]]
(a) to verification and acceptance by the Cabinet.
Lastly, we declined to approve subsection 8(7)(c), which would have
allowed permittees to submit to the Cabinet for approval a remediation
plan that demonstrates that substandard discharge will be abated
through land reclamation techniques, prior to phase II bond release, in
lieu of the bond calculation in subsection 8(7)(a). As the final rule
explained, see 83 FR 3948, 3955, this provision would have effectively
created an exception to the requirement of SMCRA section 509 that a
permittee post bond that is fully adequate to cover complete
reclamation, including water treatment, and therefore could not be
approved. In addition to declining to approve the three components of
subsection 8(7), we also required the Cabinet to take certain
regulatory action pursuant to our authority in 30 CFR 732.17(e) and
(f), as more fully discussed below.
C. Litigation--Before taking this regulatory action, the Cabinet
and the Kentucky Coal Association (KCA) filed separate--but similar--
lawsuits against the Secretary of the Interior and the Deputy Director
of OSMRE in the U.S. District Court for the Eastern District of
Kentucky (case nos. 3:18-cv-19, 3:18-cv-20), challenging the partial
approval of KY-256. Prior to the government's deadline to file its
initial response to the lawsuits, the parties commenced settlement
negotiations. The parties agreed to jointly seek a stay of proceedings
in each case so that they could explore the possibility of resolving
the lawsuits through rulemaking rather than litigation. Motions seeking
stays were filed in each case in June and July 2018. In July 2018, the
judges in the two cases granted the motions and stayed proceedings for
90 days. Through a series of similar motions and orders, the stays have
been extended to the present day and remain in effect.
D. Required Amendment--The Cabinet's amendment submission is
intended to satisfy the regulatory action required, as codified at 30
CFR 917.16(p), by addressing the issues identified in the final rule
for KY-256, and is further intended to help resolve the pending
litigation. In particular, the regulatory action we required was for
the Cabinet to either: (1) Notify us how the Cabinet will require
operators to address financial assurances for the long-term treatment
of discharges, potentially in perpetuity, under its currently approved
program, given that we did not approve new regulatory provisions in
subsection 8(7) of 405 KAR 10:015; or (2) submit an amendment to its
approved program that requires operators to provide sufficient
financial assurances for the treatment of discharges for as long as
such discharges continue to exist. In response to the required
regulatory action, the Cabinet in 2018 initially elected the first
option, notifying us, first verbally and then in writing on March 27,
2018, that its program already provides adequate financial assurance.
Following the filing of litigation on March 31, 2018, and the
subsequent agreement of the parties to pursue settlement, the Cabinet
then elected the second option, submitting provisions intended to
provide financial assurance for the treatment of discharges when long-
term treatment is required. We describe our findings on the proposed
rule, KY-261, in section III, below.
E. Additional Revisions--In addition to responding to the required
amendment, the Cabinet has proposed certain non-substantive revisions
at 405 KAR 10:015. These revisions include reference changes and
editorial edits but do not change the administrative regulations
substantively; instead, these changes clarify content or conform the
regulation to drafting requirements and conventions. The non-
substantive changes are found in 405 KAR 10:015, sections 1(2), 2(5),
2(5)(c)(3)(d), 2(5)(c)(3)(e), 2(6), 2(6)(b), 2(6)(c), 2(7), 2(7)(c), 4,
4(1)(b), 4(2)(a), 4(2)(f), 5(1), 5(2), 6(1), 6(1)(a), 6(1)(c), 6(3),
7(3), 8, 8(5), 9(4), 10(2), 11(1), 11(2), 11(3), 11(5), and 12(1)(g).
Because the changes in these sections are non-substantive, we make no
findings on them.
F. Public Notice--We announced receipt of the proposed amendment in
the February 25, 2020, Federal Register (85 FR 10634) (Administrative
Record No. KY-2003-3). In the same document, we opened the public
comment period and provided an opportunity for a public hearing or
meeting on the adequacy of the amendment. We did not hold a public
hearing or meeting because one was not requested. The public comment
period ended on March 26, 2020. Public comments received are addressed
in section IV of this notice.
G. Demonstration--During our review of the amendments, we requested
that the Cabinet demonstrate that proposed subsection 8(7)(a) would
provide sufficient financial assurances for long-term treatment sites.
By letter dated August 28, 2020 (Administrative Record No. 2003-5), the
Cabinet provided a demonstration of the model to be used to calculate
the additional bond amounts. This demonstration included a narrative
describing how the model works and three example scenarios that
calculated the additional bond amounts, which are based on the total
annualized capital costs and annual treatment costs multiplied by a
factor of 25. The calculation is intended to result in the amount of an
additional bond necessary for the regulatory authority to complete
reclamation, including treatment of discharges, in the event of a
forfeiture. As part of our review, we met with Cabinet representatives
on January 19, 2021. During the meeting, the Cabinet provided
clarifications on the adequacy of the inputs to the model and how the
model processed this information. Cabinet representatives then provided
a demonstration, supplemented by a narrative of the model's calculation
process, that adequately addressed our questions and comments.
III. OSMRE's Findings
The Cabinet seeks to add administrative regulations at 405 KAR
10:015, subsections 8(7)(a) and (b), to address the requirement for
sufficient financial assurances for the treatment of discharges, as
identified in the final rule for KY-256. The following are the findings
we made concerning the amendment under SMCRA and the Federal
regulations at 30 CFR 732.15, Criteria for approval or disapproval of
state programs, and 30 CFR 732.17, State program amendments, as
described below.
A. 405 KAR 10:015 8(7)(a): The Cabinet proposes to add subsection
8(7)(a) to its approved program. As mentioned, a provision at this
section was proposed earlier but disapproved in KY-256. The proposed
provision states that, for any permit identified as requiring long-term
treatment of a discharge, the Cabinet must calculate the amount of an
additional bond or other financial assurance instrument based on the
estimated annual treatment cost, provided by the permittee and verified
by the Cabinet, multiplied by a factor of 25, plus any capital costs of
the treatment system.
OSMRE Finding: In KY-256, the Cabinet had proposed a new regulation
at subsection 8(7)(a), which provided that, for any permit that had
been identified as producing long-term treatment drainage, the Cabinet
would calculate the amount of an additional bond based on the estimated
annual treatment cost, as provided by the permittee and verified by the
Cabinet, multiplied by twenty years. We disapproved the provision
because the Cabinet had not demonstrated that a twenty-year multiplier
would result in an adequate bond. We stated that both SMCRA and the
Federal regulations require operators to post bonds that are sufficient
in amount to assure
[[Page 27940]]
completion of reclamation if that reclamation were to be completed by
the regulatory authority. This includes abatement of any discharges.
Therefore, absent such a demonstration, we found subsection 8(7)(a)
less stringent than section 509 of SMCRA and less effective than the
Federal regulations at 30 CFR part 800, Bond and Insurance Requirements
for Surface Coal Mining and Reclamation Operations Under Regulatory
Programs, and we did not approve it.
The proposed regulation modified the KY-256 version of 8(7)(a) in
three important ways. First, when calculating the bond amount, the
Cabinet would now be required to account for capital costs, something
the earlier version in KY-256 did not do. Second, the bond calculation
basis (annual treatment cost) would be subject to a factor of 25, not
the twenty-year multiplier previously proposed. Third, the Cabinet
changed the reference in the earlier version from ``additional bond''
to ``additional bond or other financial assurance instrument,'' though
the change was not explained in the Cabinet's November 2019 submission.
There is no comparable Federal regulation that prescribes how
financial assurance requirements for the long-term treatment of
discharges should be determined. Absent such regulation, we reviewed
the model provided by the Cabinet to understand how the additional bond
or other financial assurance instrument is to be calculated under
subsection 8(7)(a). Taken together, the provisions of the proposed
regulation, the Cabinet's demonstration on the workings of its bond
calculation model, and general bond provisions of the Kentucky program
form the basis of our findings in determining whether the proposed
provisions meet the requirements of section 509 of SMCRA and 30 CFR
part 800.
Using this bond calculation model for long-term treatment costs,
the Cabinet determines the amount of bond necessary to assure
completion of reclamation if the work had to be performed by the
regulatory authority following forfeiture. The language of subsection
8(7)(a), as proposed, leaves the verification and acceptance of the
long-term treatment cost determination to the regulatory authority. We
agree with this approach and, based on the Cabinet's demonstration of
its use of its bond calculation model, find this method of determining
the amount of bond necessary for long-term treatment of discharges no
less stringent than section 509 of SMCRA and no less effective than the
Federal regulations at 30 CFR part 800.
We are satisfied that any changed circumstances affecting the
Cabinet's initial assumptions can be appropriately addressed through
future bond adjustments, as authorized in section 10 of 405 KAR 10:015.
Importantly, bond adequacy must be reassessed every two years under
subsection 6(3) of 405 KAR 10:015. This approach to bond calculation is
consistent with the Federal regulations at 30 CFR 800.14, Determination
of bond amount, and 800.15, Adjustment of amount. Neither of these
provisions spell out the precise parameters for calculation of the
original bond amount or for periodic adjustments of the bond amount.
Rather, those decisions are to be made by the regulatory authority. We
expect that long-term treatment bonds will be reviewed biannually under
subsection 6(3) of 405 KAR 10:015 and adjusted, using this bond
calculation model for long-term treatment costs, as appropriate under
section 10.
Finally, we are also satisfied that the Cabinet's bond calculation
model for long-term treatment costs demonstrates an adequate bond
amount. Recognizing the difficulty of determining an adequate bond
amount covering treatment which may last in perpetuity, and that there
is no specific Federal requirement or guidance on determining an
adequate amount of a bond covering treatment in perpetuity, the Cabinet
chose to use a surrogate of seventy-five years. We consider the
Cabinet's use of the seventy-five-year surrogate acceptable considering
that the nature and extent of long-term discharges can change over
time, that section 10 of 405 KAR 10:015 authorizes the Cabinet to
adjust bond amounts, and that section 6(3) of the same subchapter
requires biannual assessments of bond adequacy.
Given these considerations, we conclude that subsection 8(7)(a)'s
calculation provisions meet the requirements of section 509 of SMCRA,
including the requirement in section 509(a) that the amount of the bond
``be sufficient to assure the completion of the reclamation plan if the
work had to be performed by the regulatory authority in the event of
forfeiture,'' and that subsection 8(7)(a) is no less stringent than
section 509 of SMCRA and no less effective than the regulations at 30
CFR part 800. Because the Cabinet did not provide any explanation or
justification in its submission for expanding the scope to include
other financial assurance instruments beyond those already approved in
section 3, we are approving the regulation but only to the extent that
the phrase ``additional bond or other financial assurance instrument''
in subsection 8(7)(a) refers to the relevant performance bonds already
authorized in section 3 of 405 KAR 10:015. We maintain oversight of the
regulatory program and the bonding system under the approved Kentucky
program. Should we become aware that the State's bonding program is
insufficient, we have the authority to require the State to take
appropriate action. We also note our amenability to considering, in the
future, a proposed amendment seeking approval of the use of ``other
financial assurance instruments,'' one that explains what they are and
justifies Kentucky's legal authority to use such instruments.
B. 405 KAR 10:015 8(7)(b): The Cabinet proposes to add subsection
8(7)(b) to its approved program. A provision at this section was
previously proposed but disapproved in KY-256. The proposed provision
provides that the long-term treatment cost estimate is subject to
verification and acceptance by the Cabinet and that the Cabinet will
use its own estimate for annual treatment costs if it cannot verify the
accuracy of the permittee's estimate.
OSMRE Finding: Except for the added clarification in subsection
8(7)(b) that the cost estimate called for in subsection 8(7)(a) is a
``long-term treatment'' cost estimate, the Cabinet had proposed this
same language under KY-256. We did not approve this provision
previously because it referenced the bond calculation in 8(7)(a) that
we were not approving. Because we are approving the provisions of new
subsection 8(7)(a), this reference is no longer a concern. We therefore
find that subsection 8(7)(b) is no less stringent than section 509 of
SMCRA and no less effective than the Federal regulations at 30 CFR part
800, including 30 CFR 800.14(a)(1), which requires that the amount of
bond required be determined by the regulatory authority. On this basis,
it is approved.
C. 405 KAR 10:015 8(7)(c): The Cabinet's submission includes the
deletion of subsection 8(7)(c), which was proposed in KY-256 and would
have provided that, in lieu of posting the additional bond amount, the
permittee would submit a satisfactory reclamation and remediation plan
for any area producing a discharge. As originally proposed, the
reclamation plan would have to demonstrate that a pollutional discharge
can be permanently abated by land reclamation techniques prior to phase
II bond release.
OSMRE Finding: We did not approve the new regulation proposed in
KY-256 because we found the allowance of a remediation plan that is
based on land reclamation in lieu of posting adequate
[[Page 27941]]
bond unacceptable. As we stated, neither SMCRA nor its implementing
regulations provide any exceptions to the requirement to post a bond
that assures completion of reclamation, including water treatment. For
this reason, we found the provision to be less stringent than section
509 of SMCRA and less effective than the Federal regulations at 30 CFR
part 800. Because we never approved the provision, we are not making a
finding on this deletion.
IV. Summary and Disposition of Comments
Public Comments
In the February 25, 2020, Federal Register document announcing our
receipt of this amendment, we asked for public comments (85 FR 10634).
The comment period closed on March 26, 2020. No requests for public
meetings or hearings were received. By letter dated March 26, 2020, we
received comments from the KCA, which represents the producers of the
majority of coal mined in Kentucky and over one hundred additional
businesses and organizations that depend upon or support the Kentucky
coal mining industry (Administrative Record No. KY-2003-4).
In its comments, KCA supported approval of the regulations proposed
by the Cabinet, noting that it has actively participated in the
Kentucky rulemaking process and has been involved in the noted
litigation concerning partial approval of KY-256. The KCA stated that
the proposed revisions are as stringent as the requirements of SMCRA
and satisfy the criteria for approval under 30 CFR 732.15 and should be
approved without delay. The KCA mentioned its understanding that the
Cabinet has or can provide significant evidence demonstrating that the
bonding calculation methodology contained in the revised subsection
8(7) will ensure adequate bonding. The KCA emphasized that its member
companies require regulatory certainty and clarity and urged approval
without delay.
OSMRE Response: Because the comments are in support of the approval
of the amendment, a position with which OSMRE agrees, we make no
response.
Federal Agency Comments
On December 16, 2019, in accord with 30 CFR 732.17(h)(11)(i) and
section 503(b) of SMCRA, we requested comments on the amendment from
various Federal agencies with an actual or potential interest in the
Kentucky program (Administrative Record No. 2003-1). No Federal agency
comments were received.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain 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 the Cabinet proposes
to make in this amendment pertain to or affect air or water quality
standards. Therefore, we did not ask EPA to concur on the amendment.
However, on December 16, 2019, under 30 CFR 732.17(h)(11)(i), we
requested comments from the EPA (Administrative Record No. 2003-1). The
EPA did not provide any comments.
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 December 16, 2019, we requested comments from the
Kentucky Heritage Council on this amendment (Administrative Record No.
2003-1). We did not receive any comments.
V. OSMRE's Decision
Based on the above findings, we are approving KY-261 as submitted
by the Cabinet on November 25, 2019. We are approving the amendment
subject to our understanding regarding the meaning of ``other financial
assurance instrument,'' and removing the required amendment at 30 CFR
917.16(p).
To implement this decision, we are amending the Federal
regulations, at 30 CFR part 917, which codify decisions concerning the
Kentucky program. In accordance with the Administrative Procedure Act
(5 U.S.C. 500 et seq.), this rule will take effect 30 days after the
date of publication. 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. SMCRA requires
consistency of State and Federal standards, which this amendment
achieves. For these reasons, we conclude that KY-261 satisfies the
required action identified in our January 2018 final rule on KY-256. It
provides a mechanism for calculating an additional bond amount at the
time when the regulatory agency determines that long-term treatment is
required.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionality Protected Property Rights
This rule would not effect a taking of private property or
otherwise have taking implications that would result in 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 relevant Federal
regulations.
Executive Order 12866--Regulatory Planning and Review and 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, the approval of State program amendments is exempted from OMB
review under Executive Order 12866. Executive Order 13563, which
reaffirms and supplements Executive Order 12866, retains this
exemption.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by section 3(a) of Executive Order 12988. The Department has 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 State regulatory
program or to the program amendment that the Cabinet drafted.
Executive Order 13132--Federalism
This rule has potential federalism implications as defined under
section 1(a) of Executive Order 13132. Executive Order 13132 directs
agencies to ``grant the States the maximum
[[Page 27942]]
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
Government
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 federally recognized Tribes or on the distribution of
power and responsibilities between the Federal Government and Tribes.
Therefore, consultation under the Department's tribal consultation
policy is not required. The basis for this determination is that our
decision on the Kentucky program does not include Tribal lands or
affect regulation of activities on Tribal lands. Tribal lands are
regulated independently under the applicable approved Federal program.
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.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866; and this action does not address environmental
health or safety risks disproportionately affecting children.
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).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. (OMB
Circular A-119 at p. 14) This action is not subject to the requirements
of section 12(d) of the NTTAA because application of those requirements
would be inconsistent with SMCRA.
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 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 the Federal regulations setting minimum
bond requirements for surface coal mining and reclamation operations
under regulatory programs, 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.
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 on an analysis of the
corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates Reform Act
This rule will not impose an unfunded mandate on 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 an analysis of the Federal regulations setting minimum bond
requirements for surface coal mining and reclamation operations under
regulatory programs, 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.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Thomas D. Shope,
Regional Director, North Atlantic-Appalachian Region.
For the reasons set out in the preamble, 30 CFR part 917 is amended
as set forth below:
PART 917--KENTUCKY
0
1. The authority citation for part 917 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 917.15 is amended in the table in paragraph (a) by adding an
entry for ``November 25, 2019'' in chronological order by ``Date of
Final Publication'' to read as follows:
Sec. 917.15 Approval of Kentucky regulatory program amendments.
(a) * * *
[[Page 27943]]
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
November 25, 2019..................... May 10, 2022.................. 405 KAR 10:015 8(7)(a) and (b) (bonding
rate of additional areas); 405 KAR
10:015, sections 1(2), 2(5),
2(5)(c)(3)(d), 2(5)(c)(3)(e), 2(6),
2(6)(b), 2(6)(c), 2(7), 2(7)(c), 4,
4(1)(b), 4(2)(a), 4(2)(f), 5(1), 5(2),
6(1), 6(1)(a), 6(1)(c), 6(3), 7(3), 8,
8(5), 9(4), 10(2), 11(1), 11(2), 11(3),
11(5), and 12(1)(g) (non-substantive
revisions).
----------------------------------------------------------------------------------------------------------------
* * * * *
Sec. 917.16 [Amended]
0
3. Section 917.16 is amended by removing and reserving paragraph (p).
[FR Doc. 2022-09982 Filed 5-9-22; 8:45 am]
BILLING CODE 4310-05-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.