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26500 Federal Register / Vol. 69, No.

93 / Thursday, May 13, 2004 / Rules and Regulations

■ b. In the second sentence, the phrase I. Background on the Kentucky 2003 Kentucky General Assembly.
‘‘MSHA Metal and Nonmetal Mine Program Specifically, Kentucky transferred
Safety and Health District Offices and Section 503(a) of the Act permits a $3,000,000 from the Fund established in
from MSHA Coal Mine Safety and Health State to assume primacy for the Kentucky Revised Statute (KRS) 350.700
Subdistrict Offices’’ is revised to read regulation of surface coal mining and to the Commonwealth’s General Fund
‘‘the MSHA District Office.’’ reclamation operations on non-Federal for the 2002–2003 fiscal year. The
■ c. At the end of the paragraph, add transfer appears on page 225, line 21
and non-Indian lands within its borders
‘‘You may also submit reports by by demonstrating that its State program and is listed under Part V, Section J,
facsimile, 888–231–5515. To file includes, among other things, ‘‘a State item 5 of House Bill 269; the effective
electronically, follow the instructions on law which provides for the regulation of date of the transfer was June 19, 2003.
the MSHA Internet site at http:// surface coal mining and reclamation By letter dated July 10, 2003, we For assistance in operations in accordance with the requested additional information from
electronic filing, contact the MSHA help requirements of the Act * * *; and Kentucky in the form of a financial
desk at 877–778–6055.’’ rules and regulations consistent with analysis (Administrative Record No.
regulations issued by the Secretary KY–1584). We asked that the analysis
§ 50.30–1 [Amended]
pursuant to the Act.’’ See 30 U.S.C. specifically demonstrate that the
■ 14. In § 50.30–1(a), in the second 1253(a)(1) and (7). On the basis of these transfer of funds would not adversely
sentence, the phrase ‘‘Health and Safety criteria, the Secretary of the Interior impact the Fund’s ability to complete
District or Subdistrict’’ is revised to read conditionally approved the Kentucky the reclamation plan for any area which
‘‘District.’’ program on May 18, 1982. You can find may be in default at any time as
Dated: May 7, 2004. background information on the required by 30 CFR 800.11(e). By letter
Dave D. Lauriski, Kentucky program, including the dated August 14, 2003, Kentucky
Secretary’s findings, the disposition of responded by stating the Madison
Assistant Secretary of Labor for Mine Safety
and Health. comments, and conditions of approval Consulting Group would perform an
in the May 18, 1982, Federal Register actuarial review of the Fund
[FR Doc. 04–10872 Filed 5–12–04; 8:45 am]
(47 FR 21404). You can also find later (Administrative Record No. KY–1599).
actions concerning Kentucky’s program By letter dated March 3, 2004, the
and program amendments at 30 CFR Department for Natural Resources
917.11, 917.12, 917.13, 917.15, 917.16 (formerly the Department for Surface
DEPARTMENT OF THE INTERIOR Mining Reclamation and Enforcement)
and 917.17.
transmitted the Kentucky Bond Pool
Office of Surface Mining Reclamation II. Submission of the Proposed Actuarial Report to us (Administrative
and Enforcement Amendment Record No. KY–1615).
By telefax dated March 20, 2002, The actuarial review covers the time
30 CFR Part 917 period July 1, 2000, through June 30,
Kentucky asked us to informally review
[KY–244–FOR] the proposed transfer of $3,000,000 from 2003, and takes into account that
the Fund to its General Fund $3,000,000 was transferred from the
Kentucky Regulatory Program (Administrative Record No. KY–1528). Fund on June 19, 2003, with an
By letter dated March 20, 2002, we additional $840,000 to be transferred
AGENCY: Office of Surface Mining from the Fund on March 1, 2004. The
Reclamation and Enforcement (OSM), expressed concern about the transfer
and directed Kentucky to submit the full text is available for you to read at
Interior. the locations listed above at ADDRESSES.
amendment formally. We also advised
ACTION: Final rule; non-approval of Kentucky that under 30 CFR 732.17(g), The key findings of the report are
amendment. the proposed transfer could not take summarized here. The report concluded
effect until approved by OSM as an that the Fund:
SUMMARY: We are not approving an
amendment to the approved State 1. Should be able to ‘‘reasonably
amendment to the Kentucky regulatory
program (Administrative Record No. withstand the failure of any two of its
program (the ‘‘Kentucky program’’)
KY–1528). On March 18, 2003, we sent member companies’’ to be actuarially
under the Surface Mining Control and
a second letter to Kentucky stating that sound and viable on a long-term basis
Reclamation Act of 1977 (SMCRA or the
we had become aware of the proposed (p. 7);
Act). Kentucky transferred $3,000,000
transfer of funds in House Bill 269, 2. Is ‘‘currently not able to reasonably
from the Kentucky Bond Pool Fund (the
which had been recently passed by the provide for the ‘two failure’ funding
Fund) on June 19, 2003, and $840,000
Kentucky General Assembly scenario up to a 75 percent confidence
on March 1, 2004, to the
(Administrative Record No. KY–1575). level’’ (p. 8);
Commonwealth’s General Fund for the
We reiterated our concerns with the 3. Needs to increase its assets ‘‘so as
2002–2003 fiscal year.
transfer and referred to our letter dated to provide for potential liabilities and
EFFECTIVE DATE: May 13, 2004. future growth’’ (p. 8); and
March 20, 2002. We emphasized that
FOR FURTHER INFORMATION CONTACT: ‘‘no such change to laws or regulations 4. Is in a less favorable financial
William J. Kovacic, Telephone: (859) shall take effect for purposes of a State situation than the last analysis
260–8400. Internet address: program until approved as an completed for the period ending June amendment.’’ 30, 2000 (p. 8).
SUPPLEMENTARY INFORMATION: By letter dated May 22, 2003, We announced receipt of the
Kentucky sent us an amendment to its proposed amendment in the July 16,
I. Background on the Kentucky Program
II. Submission of the Proposed Amendment
program (Administrative Record No. 2003, Federal Register (68 FR 41980),
III. OSM’s Findings KY–1580) under SMCRA (30 U.S.C. and in the same document invited
IV. Summary and Disposition of Comments 1201 et seq.). Kentucky submitted a public comment and provided an
V. OSM’s Decision portion of House Bill 269, the executive opportunity for a public hearing on the
VI. Procedural Determinations branch budget bill, promulgated by the adequacy of the proposed amendment.

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Federal Register / Vol. 69, No. 93 / Thursday, May 13, 2004 / Rules and Regulations 26501

The public comment period closed on liability under the bond for the mining IV. Summary and Disposition of
August 15, 2003. operation and the operator’s liability Comments
The additional information in the period. We also noted that the Fund
form of the actuarial analysis report was Public Comments
should accrue at a rate as to provide
announced in the March 30, 2004, sufficient opportunity to observe the We solicited public comments on July
Federal Register (69 FR 16511), when operation of the Fund to determine the 16, 2003, and provided an opportunity
we reopened the public comment period adequacy of amounts and fees. We for a public hearing on the amendment.
that closed on April 14, 2004. We determined that the Fund should be Two commenters responded. Because
received comments from three private sufficient to supplement reduced no one requested an opportunity to
organizations and two Federal agencies. operator bonds to the extent necessary speak, a hearing was not held. Upon
to reclaim defaulted sites to standards in receipt of the actuarial study, we
III. OSM’s Findings reopened the public comment period on
the reclamation plan, at least until such
Following are the findings we made time as there is sufficient data available March 30, 2004, for fifteen days (69 FR
concerning the amendment under to determine the adequacy of the 16511). Two commenters responded.
SMCRA and the Federal regulations at program. If the Fund was found to be The Coal Operators & Associates, Inc.
30 CFR 732.15 and 732.17. Any inadequate to supplement member (COA) submitted comments by letter
revisions that we do not specifically bonds in the event of member default on dated August 6, 2003 (Administrative
discuss below concern nonsubstantive reclamation obligations, or could not Record No. KY–1597). The COA
wording or editorial changes. replenish itself at a sufficient rate to encourages OSM to disapprove the
Kentucky transferred $3,000,000 from transfer of $3,840,000 from the Fund to
avoid delays in reclamation of forfeited
the Fund established in KRS 350.700 to the General Fund because such transfers
sites, we would require an adjustment
its General Fund on June 19, 2003, and could make the bond pool financially
in the Fund limits and/or fees collected
an additional $840,000 on March 1, unsound in that sufficient funds would
for the Fund (51 FR 26004–5).
2004. Neither of these transfers was not be available to cover any
Subsequent revisions to Kentucky’s
submitted to OSM prior to reclamation liability that might be
implementation in accordance with 30 bond pool provisions did not alter the
incurred by a permittee’s financial
CFR 732.17(g). Section 509(c) of SMCRA basis for our original approval.
failure. We agree and are not approving
and the Federal regulations at 30 CFR Based on our review and the findings the amendment as discussed in ‘‘OSM’s
800.11(e) authorize OSM to approve an presented in the Kentucky Bond Pool Findings’’ above. The COA also
alternative bonding system if that Actuarial Report, we find that submitted comments on April 2, 2004,
system achieves the objectives and Kentucky’s transfer of funds in the (Administrative Record No. KY–1620)
purposes of the Federal bonding system. amount of $3,840,000 violates the basis in response to the reopened comment
Under this authority, OSM approved the for our 1986 approval by directing funds period. The COA reiterated its strong
provisions of KRS 350.700 on July 18, to other nonapproved uses. Further, opposition to the transfer of funds and
1986 (51 FR 26002), and March 9, 1987 such transfers are not consistent with encouraged OSM to disapprove the
(52 FR 7132). OSM also approved, in the requirements of SMCRA and the amendment. As stated earlier, we are
part, revisions to the Fund on August Federal regulations at 30 CFR 800.11(e) not approving the amendment.
18, 1992 (57 FR 37086). that require that the ABS ensures that The Kentucky Resources Council, Inc.
In the July 18, 1986, notice, we the regulatory authority has sufficient (KRC) submitted comments by an
approved Kentucky’s bond pool as funds available to complete the electronic mail message dated August
established in Senate Bill (SB) 130. The reclamation plan for any areas which 10, 2003 (Administrative Record No.
provisions of SB 130 stipulated that may be in default at any time. Therefore, KY–1598). The KRC states that the
bond pool monies would be collected we cannot approve the amendment. The amendment must be disapproved unless
and placed in an interest-bearing transfer of funds seriously jeopardizes and until Kentucky can produce an
account and used for the following Kentucky’s ability to provide for the actuarial study demonstrating that the
purposes only: (1) To reclaim permit completion of reclamation plans as transfer of funds will not adversely
areas covered by the Fund in the event required by the Federal regulations and affect the ability of the Fund to assure
of bond forfeiture; (2) to cover represents a significant departure from reclamation of all properties insured
administrative costs of the Fund; (3) to the terms of OSM’s approvals of under the Fund. We agree and based, in
fund audits and actuarial studies Kentucky’s alternative bonding system part, on the findings presented in the
required for the Fund; and (4) to cover on July 18, 1986. Kentucky Bond Pool Actuarial Report,
operating and legal expenses of the To avoid any action required by 30 we are not approving the amendment as
bond pool commission. In our approval, CFR part 732, we are therefore discussed in ‘‘OSM’s Findings’’ above.
we noted that 30 CFR 800.11(e) requesting that Kentucky do the The KRC further urges OSM to take
authorizes approval of an alternate following. Within 60 days of the date of prompt action to require that permitted
bonding system (ABS) if the regulatory publication of this decision in the operations obtain individual
authority will have available sufficient Federal Register, Kentucky should performance bond coverage if the
money to complete the reclamation plan either replenish the $3,840,000 into the alternative bonding mechanism fails to
for any areas in default at any time and Fund or provide us with a written meet the requirements of Section 509(c)
if the ABS provides an economic description of a plan to accomplish this of SMCRA. Because we have not found
incentive for the permittee to comply action. Additionally, until the Fund is the ABS in violation of SMCRA or the
with all reclamation provisions. We replenished, Kentucky should not Federal regulations, we believe such
found that the Kentucky ABS achieved initiate any actions that further action would be premature. Finally, the
the objectives and purposes of Section jeopardize the solvency of the Fund KRC states that in the event that the
509 of SMCRA in that it provided for such as increasing the number of funds have already been transferred in
funding in an amount sufficient to participants or adding acreage. In short, violation of 30 CFR 733.11 and 732.17,
ensure the completion of the use of the Fund to provide new OSM should direct that no further risks
reclamation plan and it did not alter the financial guarantees is hereby be incurred by the State bond pool,
approved Kentucky requirements for suspended. including no new operators and no new

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26502 Federal Register / Vol. 69, No. 93 / Thursday, May 13, 2004 / Rules and Regulations

acreage, until the State either restores KY–1596). By an electronic mail regulations at 30 CFR 732.17(g) prohibit
the funds or demonstrates solvency of message dated July 31, 2003, the U.S. any changes to approved State programs
the Fund. We agree, as discussed in Fish and Wildlife Service commented that are not approved by OSM. In the
‘‘OSM’s Findings’’ above. that it was concerned that Kentucky’s oversight of the Kentucky program, we
Financial Assurance Consulting proposed transfer of funds from the will recognize only the statutes,
Services (FACS) submitted comments Bond Pool Fund to the General Fund regulations, and other materials we have
on April 14, 2004 (Administrative sets ‘‘an extremely bad precedence for approved, together with any consistent
Record No. KY–1622), in response to the future activities of this nature’’ implementing policies, directives, and
reopened comment period. FACS (Administrative Record No. KY–1595). other materials. We will require
recommends that OSM not approve the We agree and are not approving the Kentucky to enforce only approved
amendment and offers four reasons in amendment as discussed in ‘‘OSM’s provisions.
support of its recommendation. They Findings’’ above.
are: (1) The proposed transfer of funds VI. Procedural Determinations
is not in accordance with Federal Environmental Protection Agency (EPA)
Executive Order 12630—Takings
regulations and further erodes the bond Pursuant to 30 CFR 732.17(h)(11)(ii),
This rule does not have takings
pool not deemed currently sufficient by OSM is required to obtain the written
implications that warrant the
the actuarial report; (2) approval of the concurrence of the EPA with respect to
preparation of a takings implication
transfer would set a precedent that those provisions of the proposed
assessment. This determination is based
could jeopardize the integrity of other program amendment that relate to air or
on an analysis of the action being taken
bonding systems approved by OSM, and water quality standards promulgated by OSM. Our decision not to approve
may result in additional transfers on under the authority of the Clean Water the State program amendment and,
monies if legislatures view bond pools Act (33 U.S.C. 1251 et seq.) or the Clean therefore, the transfer of $3,840,000
as an available source of funds; (3) Air Act (42 U.S.C. 7401 et seq.). Because from the Fund to the Commonwealth’s
Kentucky’s bond pool funds must be the provisions of this amendment do not General Fund will not affect the use or
available to the regulatory authority in relate to air or water quality standards, value of private property within the
the same manner conventional bonds we did not request EPA’s concurrence. meaning of Executive Order 12630.
are to guarantee reclamation, as required
V. OSM’s Decision Executive Order 12866—Regulatory
by SMCRA (The transfer of funds
jeopardizes that availability.); and (4) Based on the above findings, we are Planning and Review
the integrity of the Kentucky Fund must not approving the amendment as This rule is exempted from review by
be protected and Kentucky should be submitted by Kentucky on May 22, the Office of Management and Budget
required to do so. Kentucky should be 2003. We are requesting that within 60 under Executive Order 12866.
required to reimburse the Fund for the days of publication of this decision in
amount of monies transferred. Also, the Federal Register, Kentucky either Executive Order 12988—Civil Justice
FACS recommends a program replenish the $3,840,000 into the Fund Reform
amendment to assure that bond monies or submit to us a written description of The Department of the Interior has
are not jeopardized, and suggests that an a plan to accomplish this action. conducted the reviews required by
insured trust/escrow account be Additionally, Kentucky should not section 3 of Executive Order 12988 and
substituted for the current trust and initiate any actions that would further has determined that this rule meets the
agency account. Further, FACS jeopardize the Fund’s solvency, such as applicable standards of subsections (a)
recommends that OSM require increasing the number of participants or and (b) of that section. However, these
Kentucky to implement some kind of adding additional acreage. The use of standards are not applicable to the
procedure or mechanism for having the the Fund to provide new financial actual language of State regulatory
legislature reimburse the bond pool guarantees is hereby suspended. programs and program amendments
fund for monies already transferred. In To implement this decision, we are because each program is drafted and
response, we note that because we have amending the Federal regulations at 30 promulgated by a specific State, not by
not found the ABS in violation of CFR part 917 which codify decisions OSM. Under sections 503 and 505 of
SMCRA or the Federal regulations, we concerning the Kentucky program. We SMCRA (30 U.S.C. 1253 and 1255) and
believe any actions such as these would find that good cause exists under 5 the Federal regulations at 30 CFR
be premature. Otherwise, however, we U.S.C. 553(d)(3) to make this final rule 730.11, 732.15, and 732.17(h)(10),
agree on all points and are not effective immediately. Section 503(a) of decisions on proposed State regulatory
approving the amendments as discussed SMCRA requires that Kentucky’s programs and program amendments
in ‘‘OSM’s Findings’’ above. We are also program demonstrate that it has the submitted by the States must be based
requesting that Kentucky replenish the capability of carrying out the provisions solely on a determination of whether the
Fund in the amount of the $3,840,000. of the Act and meeting its purposes. submittal is consistent with SMCRA and
Making this regulation effective its implementing Federal regulations
Federal Agency Comments
immediately will expedite that process. and whether the other requirements of
According to 30 CFR 732.17(h)(11)(i), SMCRA requires consistency of State 30 CFR Parts 730, 731, and 732 have
on July 16, 2003, we solicited comments and Federal standards. been met.
on the amendment submitted on May
22, 2003, from various Federal agencies Effect of OSM’s Decision Executive Order 13132—Federalism
with an actual or potential interest in Section 503 of SMCRA provides that This rule does not have Federalism
the Kentucky program. Two a State may not exercise jurisdiction implications. SMCRA delineates the
commenters responded. By letter dated under SMCRA unless the State program roles of the Federal and State
July 28, 2003, the Department of Labor, is approved by the Secretary. Similarly, governments with regard to the
Mine Safety and Health Administration, 30 CFR 732.17(a) requires that any regulation of surface coal mining and
commented that the proposed change of an approved State program be reclamation operations. One of the
amendment had no apparent impact on submitted to OSM for review as a purposes of SMCRA is to ‘‘establish a
its program (Administrative Record No. program amendment. The Federal nationwide program to protect society

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Federal Register / Vol. 69, No. 93 / Thursday, May 13, 2004 / Rules and Regulations 26503

and the environment from the adverse Regulatory Flexibility Act (c) The amendment to Kentucky’s
effects of surface coal mining program transferring $3,840,000 from
The Department of the Interior
operations.’’ Section 503(a)(1) of the Kentucky Bond Pool Fund to the
certifies that this rule will not have a
SMCRA requires that State laws Commonwealth’s General Fund for the
significant economic impact on a
regulating surface coal mining and 2002–2003 fiscal year is not approved.
substantial number of small entities
reclamation operations be ‘‘in The use of the Fund to provide new
under the Regulatory Flexibility Act (5
accordance with’’ the requirements of financial guarantees is hereby
U.S.C. 601 et seq.). This determination
SMCRA, and section 503(a)(7) requires suspended.
is based on an analysis of the action
that State programs contain rules and * * * * *
being taken. The decision by OSM not
regulations ‘‘consistent with’’ [FR Doc. 04–10746 Filed 5–12–04; 8:45 am]
to approve the State program
regulations issued by the Secretary
amendment and, therefore, the transfer BILLING CODE 4310–05–P
pursuant to SMCRA.
of $3,840,000 from the Fund to the
Executive Order 13175—Consultation Commonwealth’s General Fund is an
and Coordination With Indian Tribal administrative action that does not ENVIRONMENTAL PROTECTION
Governments impose new obligations or requirements AGENCY
on small entities as determined by the
In accordance with Executive Order size standard of the Small Business 40 CFR Part 52
13175, we have evaluated the potential Administration at 13 CFR 121.201. [R07–OAR–2004–MO–0001; FRL–7661–4]
effects of this rule on Federally-
recognized Indian tribes and have Small Business Regulatory Enforcement Approval and Promulgation of
determined that the rule does not have Fairness Act Implementation Plans; State of
substantial direct effects on one or more For the reasons previously stated, this Missouri
Indian tribes, on the relationship rule is not a major rule under 5 U.S.C.
between the Federal Government and AGENCY: Environmental Protection
804(2), the Small Business Regulatory Agency (EPA).
Indian tribes, or on the distribution of Enforcement Fairness Act. This rule: (a)
power and responsibilities between the ACTION: Direct final rule.
Does not have an annual effect on the
Federal Government and Indian tribes. economy of $100 million; (b) Will not
The basis for this determination is our SUMMARY: EPA is announcing it is
cause a major increase in costs or prices approving a revision to the Missouri
decision on a State regulatory program for consumers, individual industries,
and does not involve a Federal State Implementation Plan (SIP) which
Federal, State, or local government updates changes to the non-regulatory
regulation involving Indian lands. agencies, or geographic regions; and (c) portion of the Inspection and
Executive Order 13211—Regulations Does not have significant adverse effects Maintenance (I/M) Program for the St.
That Significantly Affect the Supply, on competition, employment, Louis area. The original SIP for the
Distribution, or Use of Energy investment, productivity, innovation, or centralized St. Louis I/M program was
the ability of U.S.-based enterprises to approved in 2000 and the program was
On May 18, 2001, the President issued compete with foreign-based enterprises.
Executive Order 13211 which requires implemented in April 2000. Due to a
agencies to prepare a Statement of Unfunded Mandates regulatory amendment, the SIP was
Energy Effects for a rule that is (1) revised in 2002. At that time, the non-
For the reasons previously stated, this regulatory portion of the SIP was not
considered significant under Executive rule will not impose an unfunded
Order 12866, and (2) likely to have a revised. Approval of this revision will
mandate on State, local, or tribal ensure consistency between the
significant adverse effect on the supply, governments or the private sector of
distribution, or use of energy. Because description of the program included in
$100 million or more in any given year. the approved SIP and the current
this rule is exempt from review under
Executive Order 12866 and is not List of Subjects in 30 CFR Part 917 Missouri program description.
expected to have a significant adverse DATES: This direct final rule will be
Intergovernmental relations, Surface
effect on the supply, distribution, or use effective July 12, 2004, without further
mining, Underground mining.
of energy, a Statement of Energy Effects notice, unless EPA receives adverse
Dated: April 21, 2004. comment by June 14, 2004. If adverse
is not required.
Brent Wahlquist, comment is received, EPA will publish
National Environmental Policy Act Regional Director, Appalachian Regional a timely withdrawal of the direct final
Coordinating Center. rule in the Federal Register informing
This rule does not require an
environmental impact statement ■ For the reasons set out in the preamble, the public that the rule will not take
because section 702(d) of SMCRA (30 30 CFR part 917 is amended as set forth effect.
U.S.C. 1292(d)) provides that agency below: ADDRESSES: Submit your comments,
decisions on proposed State regulatory identified by Regional Material in
program provisions do not constitute PART 917—KENTUCKY EDocket (RME) ID Number R07–OAR–
major Federal actions within the ■ 1. The authority citation for part 917 2004–MO–0001, by one of the following
meaning of section 102(2)(C) of the continues to read as follows: methods:
National Environmental Policy Act (42 1. Federal eRulemaking Portal:
U.S.C. 4332(2)(C)). Authority: 30 U.S.C. 1201 et seq. Follow the
Paperwork Reduction Act ■ 2. Section 917.17 is amended by on-line instructions for submitting
revising the section heading and adding comments.
This rule does not contain paragraph (c) to read as follows: 2. Agency Web site: http://
information collection requirements that RME, EPA’s
require approval by OMB under the § 917.17 State regulatory program electronic public docket and comment
Paperwork Reduction Act (44 U.S.C. amendments not approved. system, is EPA’s preferred method for
3507 et seq.). * * * * * receiving comments. Once in the

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