Kentucky Regulatory Program
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Issuing agencies
Abstract
The Office of Surface Mining Reclamation and Enforcement (OSM) is approving an amendment to the Kentucky regulatory program (hereinafter, the Kentucky program), under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). OSM is approving revisions to Kentucky's administrative regulations that reflect the repeal of its interim program regulations and make unrelated editorial updates and corrections.
Full Text
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<title>Federal Register, Volume 91 Issue 98 (Thursday, May 21, 2026)</title>
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[Federal Register Volume 91, Number 98 (Thursday, May 21, 2026)]
[Rules and Regulations]
[Pages 29898-29902]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-10202]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[SATS No. KY-263-FOR; Docket ID: OSM-2020-002; S1D1S SS08011000
SX064A000 267S180110; S2D2S SS08011000 SX064A000 26XS501520]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving an amendment to the Kentucky regulatory program
(hereinafter, the Kentucky program), under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). OSM is approving
revisions to Kentucky's administrative regulations that reflect the
repeal of its interim program regulations and make unrelated editorial
updates and corrections.
DATES: The effective date is June 22, 2026.
FOR FURTHER INFORMATION CONTACT: Mr. Justin Adams, Acting Lexington
Field Office Director, Telephone (304) 977-7177, Email: <a href="/cdn-cgi/l/email-protection#abc1cacfcac6d8ebc4d8c685ccc4dd"><span class="__cf_email__" data-cfemail="a7cdc6c3c6cad4e7c8d4ca89c0c8d1">[email protected]</span></a>.
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. See 30 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
[[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 <a href="http://www.regulations.gov">www.regulations.gov</a>.
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 Sec. 786.21). See 47 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
[[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). See 71 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
[[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
[[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.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Ben Owens,
Acting 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. In Sec. 917.15, amend the table in paragraph (a) by adding an entry
for ``May 18, 2020'' in chronological order by ``Date of Final
Publication'' to read as follows:
Sec. 917.15 Approval of Kentucky regulatory program amendments.
(a) * * *
----------------------------------------------------------------------------------------------------------------
Date of final
Original amendment submission date publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
May 18, 2020.......................... 5/21/2026 405 KAR 7:040, 7:050; 8:010, 8:030; 10:050; 16:100,
16:210; 18:100, 18:220; 20:040; 26:011 (repeal of 405
KAR 26:001).
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* * * * *
[FR Doc. 2026-10202 Filed 5-20-26; 8:45 am]
BILLING CODE 4310-05-P
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