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Proposed Rule

Kansas Regulatory Program

Document Details

Information about this document as published in the Federal Register.

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AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Proposed rule; reopening and extension of public comment period on proposed amendment.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of revisions to a previously proposed amendment to the Kansas regulatory program (Kansas program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The revisions concern newly promulgated Kansas Regulations. Kansas submitted these regulations at its own initiative to meet the requirements for its program to operate under Title IV and V of the Surface Mining Control and Reclamation Act and to make technical and editorial corrections to its program. This document gives the times and locations where the Kansas program and proposed amendment are available for your inspection and the comment period during which you may submit written comments on the revisions to the amendment.

DATES:

We will accept written comments on this amendment until 4 p.m., c.d.t., May 28, 2008. If requested, we will hold a public hearing on the amendment on May 23, 2008. We will accept requests to speak at a hearing until 4 p.m., c.d.t. on May 13, 2008.

ADDRESSES:

You may submit comments, identified by Docket No. OSM-2008-0001, by any of the following methods:

  • Federal eRulemaking Portal: The proposed rule has been assigned Docket ID: OSM-2008-0001. If you would like to submit comments through the Federal eRulemaking Portal, go to www.regulations.gov and do the following. Click on the “Advanced Docket Search” button on the right side of the screen. Type in the Docket ID OSM-2008-0001 and click the “Submit” button at the bottom of the page. The next screen will display the Docket Search Results for the rulemaking. If you click on OSM-2008-0001, you can view the proposed rule and submit a comment. You can also view supporting material and any comments submitted by others.
  • Mail/Hand Delivery/Courier: Submit your comments to Alfred L. Clayborne, Director, Tulsa Field Office, Office of Surface Mining Reclamation and Enforcement, 1645 South 101 St. East Avenue, Tulsa, Oklahoma 74128.

Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Comment Procedures” heading of the SUPPLEMENTARY INFORMATION section of this document.

Docket: In addition to obtaining copies of documents at www.regulations.gov, information may also be obtained at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSM's Tulsa Field Office: Alfred L. Clayborne, Director, Tulsa Field Office, Office of Surface Mining Reclamation and Enforcement, 1645 South 101 St. East Avenue, Tulsa, Oklahoma 74128-6547, Telephone: (918) 581-6430, E-mail: aclayborne@osmre.gov.

In addition, you may review a copy of the amendment during regular business hours at the following location: Kansas Department of Health and Environment, Surface Mining Section, 4033 Parkview Drive, Frontenac, Kansas 66763, Telephone: (316) 231-8540.

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FOR FURTHER INFORMATION CONTACT:

Alfred L. Clayborne, Director, Tulsa Field Office. Telephone: (918) 581-6430. E-mail: aclayborne@osmre.gov.

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SUPPLEMENTARY INFORMATION:

I. Background on the Kansas Program

II. Description of the Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations

I. Background on the Kansas Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation Start Printed Page 22888operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kansas program on January 21, 1981. You can find background information on the Kansas program, including the Secretary's findings, the disposition of comments, and the conditions of approval, in the January 21, 1981, Federal Register (46 FR 5892). You can also find later actions concerning the Kansas program and program amendments at 30 CFR 916.10, 916.12, 916.15, and 916.16.

II. Description of the Proposed Amendment

By letter dated November 19, 2007 (Administrative Record Nos. 626 and 627), Kansas sent us amendments to its program under SMCRA (30 U.S.C. 1201 et seq.). Kansas sent the amendments in one package, identifying the Kansas 2006 Revegetation Success Guidelines as KS-024-FOR and the Normal Husbandry Practices as KS-025-FOR. We have combined both amendments under one docket number (Docket No. OSM-2008-0001). We announced receipt of the amendment in the January 23, 2008, Federal Register (73 FR 3894) and invited public comment on its adequacy. The public comment period closed February 22, 2008. Kansas submitted these amendments at their own initiative.

During our review of the previous submitted proposed amendments (Kansas's 2006 Revegetation Success Guidelines and Normal Husbandry Practices, Administrative Record Nos. 626 and 627), we identified incorrectly cited regulation references. We notified Kansas of our concerns by telephone on February 7, 2008, (Administrative Record No. 626.08). Kansas, by email on February 7, 2008 (Administrative Record No. 626.06), sent us revisions to its proposed amendments for review under SMCRA (30 U.S.C. 1201 et seq.). These revisions concern new promulgated Kansas Regulations (Kansas Department of Health and Environment Amended Permanent Regulation), which coincide with regulation citations used in its proposed 2006 Revegetation Success Guidelines and Normal Husbandry Practices for Surface-Mined Lands.

Kansas's new regulations contain a substantial number of grammatical changes to update outdated language and codifications. Changes can be found in the following articles:

Article 2—Meaning of Terms 47-2-75, Article 3—Application for Mining Permit 47-3-42, Article 4—Public Hearing 47-4-14a, Article 5—Civil Penalties 47-5-5a, Article 6—Permit Review 47-6-1, Article 6—Permit Review 47-6-2, Article 7—Coal Exploration 47-7-2, Article 8—Bonding Procedures 47-8-9, Article 9—Performance Standards 47-9-1, Article 9—Performance Standards 47-9-4, Article 10—Underground Mining 47-10-1, Article 11—Small Operator Assistant Program 47-11-8, Article 12—Lands Unsuitable Surface Mining 47-12-4, Article 13—Training, Certification, and Responsibilities of Blasters and Operators 47-13-4, Article 14—Employee Financial Interests 47-14-7, Article 15—Inspection and Enforcement 47-15-1a, Article 16—Reclamation 47-16-9, Article 16—Reclamation 47-16-10, and Article 16—Reclamation 47-16-12.

Kansas proposes more specific substantive revisions to its regulations in the following articles and sections:

K.A.R. 47-3-42, Article 3—Application for Mining permit, (5)(a)(55): Kansas proposes to delete subsection (d) of this article.

K.A.R. 47-4-14a, Article 4—Public Hearing, document filing section (2)(c)(2): Kansas proposes to delete references to the Administrative Appeals Section of the Kansas Department of Health and Environment, Suite 400D, 109. SW 9th, Topeka, Kansas 66612-1215 and add the Office of Administrative Hearings, a division of the Kansas Department of Administration.

K.A.R 47-4-14a, Article 4—Public Hearing section (d)(3)(A): Kansas proposes to delete the phrase, “a presiding officer shall be assigned by the department for the prehearing conference, exercising the same discretion as is provided by subsection (d)(2) concerning the selection of a presiding officer for a hearing.”

K.A.R. 47-5-5a, Article 5—Civil Penalties (a): Kansas proposes to insert a new penalty table, change the dollar amount assessed for separate violations for each day, and add new language in section 47-5-5 (d)(1): Delinquent payment.

K.A.R. 47-5-5, Article 5—Civil Penalties (b)(13): Kansas proposes to delete reference to the Administrative Appeals Coordinator, Administrative Appeals Section, Office of the Secretary, Kansas Department of Health and Environment, Mills Building, Suite 400D, 109 SW. 9th Street, Topeka, Kansas 66612-1215 and add the Office of Administrative Hearings, a division of the Kansas Department of Administration.

III. Public Comment Procedures

We are reopening the comment period on the proposed Kansas program amendment to provide you an opportunity to reconsider the adequacy of the amendment in light of the additional materials sent to us. Under the provisions of 30 CFR 732.17(h), we are requesting comments on whether the amendment satisfies the program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Kansas program.

Written Comments

Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Tulsa Field Office may not be logged in.

Public Hearing

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t. on May 13, 2008. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak, and others present in the audience who wish to speak, have been heard.

Public Meeting

If there is only limited interest in participating in a public hearing, we may hold a public meeting rather than Start Printed Page 22889a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

Public Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

IV. Procedural Determinations

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

Executive Order 13132—Federalism

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Kansas program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Kansas program has no effect on federally-recognized Indian tribes.

Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have 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 expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

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List of Subjects in 30 CFR Part 916

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Dated: April 2, 2008.

Bill Joseph,

Acting Regional Director, Mid-Continent Region.

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[FR Doc. E8-9194 Filed 4-25-08; 8:45 am]

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