Kansas Regulatory Program, 72346-72352 [E8-28337]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement

[Federal Register Volume 73, Number 230 (Friday, November 28, 2008)]
[Rules and Regulations]
[Pages 72346-72352]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28337]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 916

[SATS No. KS-024-FOR; Docket No. OSM-2008-0001]


Kansas Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving amendments to the Kansas regulatory program 
(Kansas program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). Kansas proposed revisions to its 2006 
Revegetation Success Guidelines, Normal Husbandry Practices, and State 
Regulations. Kansas intends to revise its program to improve 
operational efficiency.

DATES: Effective Date: November 28, 2008.

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

SUPPLEMENTARY INFORMATION:

I. Background on the Kansas Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 operations 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

[[Page 72347]]

Kansas program and program amendments at 30 CFR 916.10, 916.12, 916.15, 
and 916.16.

II. Submission of the Amendment

    Kansas, by letter dated November 19, 2007 (Administrative Record 
Nos. 626 and 627), sent amendments to its program under SMCRA (30 
U.S.C. 1201 et seq.). Kansas submitted these amendments at its own 
initiative.
    We announced receipt of Kansas' amendments in the January 23, 2008, 
Federal Register (73 FR 3894). We opened the public comment period and 
the public was provided an opportunity to submit comments or request a 
public hearing on the adequacy of Kansas' proposed amendments. No one 
requested a public hearing. The public comment period ended February 
22, 2008.
    On Feburuary 7, 2008, we notified Kansas by telephone 
(Administrative Record No. KS-626.08), of inconsistent and incorrect 
citations to specific regulations referenced within Kansas' 2006 
Revegetation Success Guidelines and Normal Husbandry Practices. On 
February 7, 2008, Kansas submitted its newly promulgated regulations 
(Administrative Record No. 626.06), to correct those inconsistencies; 
however, the submitted regulations were not yet approved by us as part 
of the Kansas Program. On May 12, 2008, we reopened the public comment 
period to provide the public an opportunity to consider the adequacy of 
Kansas' revised regulations and to reconsider the original amendment in 
light of these revised regulations (73 FR 22888). Under the provisions 
of 30 CFR 732.17(h), we requested comments on whether the amendments 
satisfied the program approval criteria of 30 CFR 732.15. No one 
requested a public hearing. The public comment period ended May 28, 
2008.

III. OSM's Findings

    The following are our findings concerning the submitted amendments 
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We 
are approving the amendments as described below.

A. 2006 Revegetation Success Guidelines: Guidance Document

    Kansas has adopted by reference significant parts of OSM's 2001 
regulations, including 30 CFR parts 816, 817, and 823. Specifically, 
the 2001 Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
require that each regulatory authority select revegetation success 
standards and statistically valid techniques for measuring revegetation 
success and include them in its approved regulatory program.
    OSM's approval of revegetation success guidelines has been 
eliminated at 30 CFR parts 816 and 817 (71 FR 51684). However, Kansas' 
approved program still requires our approval of its revegetation 
success standards. Therefore, Kansas has submitted its Revegetation 
Success Guidelines to us for approval in accordance with the State's 
approved regulatory program.
Definitions
    Kansas proposed to add the following definitions: Fish and wildlife 
habitat, forestry, industrial/commercial, pastureland, recreation, and 
residential. In addition, Kansas proposed to revise existing 
definitions: historically used for cropland, permanent, and previously 
mined.
    The Federal regulations contain all of the above definitions 
proposed by Kansas. We are approving Kansas' proposed definitions 
because they are substantively the same as the Federal definitions at 
30 CFR 701.5.
Table 1. Revegetation Requirement for Pastureland and Grazingland Bond 
Release
    Kansas, at Table 1, proposed to decrease the ground cover success 
standard for Phase II and Phase III bond release from 100 percent to 90 
percent.
    We find that the revision meets the requirements of the Federal 
regulations at 30 CFR 816.116(a)(1) and 817.117(a)(1) stating that 
standards for success shall be selected by the regulatory authority. 
Therefore, we approve this revision.
Section I. Ground Cover Success Standard
    Kansas proposed to change information and consolidate substantive 
provisions of its approved ground cover success standards for all land 
uses. Subsection A provides the success standard for ground cover on 
prime farmland cropland. Subsection B discusses the success standard 
for ground cover on cropland. Subsection C provides the success 
standard for ground cover on pastureland and grazingland. Subsection D 
contains the success standard for ground cover on pastureland and 
grazingland--no topsoil. Subsections E and F contain the success 
standards for ground cover for fish and wildlife habitat, recreation, 
shelter belts, and forest products land uses with or without topsoil, 
respectively. Subsection G contains specific success standards for 
ground cover on industrial, commercial, or residential sites with or 
without topsoil.
    The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
require that standards for success and statistically valid sampling 
techniques for measuring success shall be selected by the regulatory 
authority, described in writing, and made available to the public. The 
Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) require 
that standards for success must include criteria representative of 
unmined lands in the area being reclaimed to evaluate the appropriate 
vegetation parameters of ground cover. Ground cover will be considered 
equal to the approved success standard when it is not less than 90 
percent of the success standard. The sampling techniques for measuring 
success must use a 90 percent statistical confidence interval (i.e., 
one-sided test with a 0.10 alpha error). The Federal regulations at 30 
CFR 816.116(b), and 817.116(b) contain the minimum success standards 
for ground cover for each land use; however, the Federal regulations do 
not contain a specific ground cover success standard for prime farmland 
or cropland. The Federal regulations at 30 CFR 816.116(c) and 
817.116(c) contain the minimum period of extended responsibility for 
successful revegetation. We conducted a technical review of Section I 
and found that Kansas' guidelines for ground cover success standards 
are no less effective than the requirements of the Federal regulations. 
Therefore, we approve these revisions.
Section II. Ground Cover Sampling
    Kansas proposed to make editorial and format changes to its 
approved ground cover success standards for all land uses in Section 
II. Subsection A. contains specific information regarding premine 
ground cover sampling criteria and techniques. Subsection B provides 
information on postmine ground cover sampling criteria and techniques. 
Kansas did not propose any substantive changes, therefore, we approve 
these revisions.
Section III. Production Success Standards-Forage
    Kansas revised and reformated substantive provisions of this 
section regarding production success standards for forage. Subsection A 
discusses forage productivity standard databases. It requires the use 
of the United States Department of Agriculture, Natural Resources 
Conservation Service (NRCS) crop yield databases for establishing 
forage production success standards. These databases list crop yields 
by

[[Page 72348]]

county and soil mapping units and can be found in the NRCS Soil Data 
Mart located at https://soildatamart.nrcs.usda.gov/. Section A also 
contains the productivity standards for prime farmland cropland forage 
crops, cropland forage crops, pastureland, and grazingland. For prime 
farmland, the permittee must meet 100 percent of the forage 
productivity standard. For cropland, 90 percent of the forage 
productivity standard must be met. For pastureland and grazingland, the 
applicant must demonstrate successful revegetation establishment in 
accordance with K.A.R. 47-8-9(a)(13) for Phase II and Phase III 
revegetation bond release.
    Subsection B explains the method of calculation for converting the 
Animal Unit Month (A.U.M.) values listed in the NRCS Nonirrigated Yield 
by Map Unit database to pounds per acre of dry forage per growing 
season. Kansas reevaluated the A.U.M. value used in its previous 
guidance document for forage production. A conversion factor of 760 
pounds of dry forage per A.U.M. is used.
    Subsection C describes methods for data collection to assess forage 
productivity. The permittee may collect this data through a sampling 
program or through whole field harvest.
    The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
require that standards for success and statistically valid sampling 
techniques for measuring success shall be selected by the regulatory 
authority, described in writing, and made available to the public. The 
Federal regulations at 30 CFR 816.116(a)(2), 817.116(a)(2), and 823.15 
require that standards for success must include criteria representative 
of unmined lands in the area being reclaimed to evaluate the 
appropriate vegetation parameters of production. Productivity for prime 
farmland soils must equal or exceed the average yield of the reference 
crop established for the same period for the same or similiar non-mined 
soils. Productivity for cropland, pastureland, and grazingland must, at 
a minimum, meet 90 percent of the success standard with a 90 percent 
statistical confidence interval (i.e., one-sided test with a 0.10 alpha 
error). The Federal regulations at 30 CFR 816.116(b) and 817.116(b) 
contain the minimum success standards for cropland, pastureland, and 
grazingland in which productivity must be equal to that of a reference 
area or such other success standards approved by the regulatory 
authority. The Federal regulations at 30 CFR 816.116(c) and 817.116(c) 
and 823.15(b) contain the minimum period of extended responsibility for 
successful revegetation. We conducted a technical review of Section III 
and found that Kansas' guidelines for forage production are no less 
effective than the requirements of the Federal regulations. Therefore, 
we are approving them.
Section IV. Production Success Standards-Row Crops
    Kansas revised and consolidated substantive provisions of its 
approved row crop production success standards for prime farmland and 
cropland. These success standards are based on the NRCS crop yield 
databases. Kansas will now rely upon the ``Electronic Field Office 
Technical Guides (eFOTG)'' found at https://soildatamart.nrcs.usda.gov/. 
Where a yield number has not been established for a particular crop in 
a particular soil mapping unit, the operator in conjunction with the 
Kansas Surface Mining Section (SMS), may establish a yield target based 
on the previously published county soil surveys and the NRCS database 
in Technical Guide Notice KS-145. The operator will also be required to 
submit a printout of the yield data generated for the permit, including 
the date the information was accessed, as part of the approved permit 
application package. Subsection A of this section discusses the 
acceptable row crops for determining revegetation productivity. 
Subsection B describes the acceptable method for calculating the row 
crop production success standard. Subsection C describes row crop 
sampling criteria. Subsection D describes the methods of data 
collection that permittees may choose to assess row crop productivity. 
Sections E and F describe productivity sampling criteria for prime 
farmland row crops and cropland row crops, respectively. Finally, 
Subsection G describes row crop sampling techniques for test plots and 
whole field sampling for grain sorghum (milo), wheat, soybeans, and 
corn.
    The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
require that standards for success and statistically valid sampling 
techniques for measuring success shall be selected by the regulatory 
authority, described in writing, and made available to the public. The 
Federal regulations at 30 CFR 816.116(a)(2), 817.116(a)(2), and 823.15 
require that standards for success must include criteria representative 
of unmined lands in the area being reclaimed to evaluate the 
appropriate vegetation parameters of production. Productivity for prime 
farmland soils must equal or exceed the average yield of the reference 
crop established for the same period for the same or similiar non-mined 
soils. Productivity for cropland must, at a minimum, meet 90 percent of 
the success standard with a 90 percent statistical confidence interval 
(i.e., one-sided test with a 0.10 alpha error). The Federal regulations 
at 30 CFR 816.116(b)(2) and 817.116(b)(2) and 823.15(b)(2) contain the 
minimum success standards for cropland in which productivity must be 
equal to that of a reference area or such other success standards 
approved by the regulatory authority. The Federal regulations at 30 CFR 
816.116(c) and 817.116(c) and 823.15(b) contain the minimum period of 
extended responsibility for successful revegetation.
    The Federal regulations at 30 CFR 823.15(b) (2) allow soil 
productivity to be measured on a representative sample area or on all 
of the mined and reclaimed prime farmland. Kansas now allows 
productivity to be measured on a representative area or by whole field 
harvest. The Federal regulations at 30 CFR 823.15(b)(7) (ii) require 
that reference crop yields for a given crop season be determined using 
the average county yields recognized by the U.S. Department of 
Agriculture which have been adjusted by the U.S. Soil Conservation 
Service (now the NRCS) for local yield variation within the county. 
Kansas now refers directly to NRCS' on-line crop yield database to 
determine the yield target for a given permit. We conducted a technical 
review of the changes to Section IV and found that Kansas' guidelines 
for row crop production are no less effective than the requirements of 
the Federal regulations. Therefore, we are approving them.
Appendices
    Kansas' revised revegetation guidance document contains seven 
appendices that support the provisions in Sections I through IV.
Appendix A, Plant Species List
    Kansas revised its previously approved list of plant species. 
Appendix A lists the plant species that are unacceptable for all land 
uses except for selected species at areas acceptable for fish and 
wildlife habitat land use. It lists the acceptable tree species for 
fish and wildlife habitat, recreation areas, forest products, and 
shelter belt land uses. It also lists the acceptable shrub and vine 
species for fish and wildlife habitat, recreation areas, and shelter 
belt land uses. In addition, it lists the acceptable legume species 
based on land use for revegetation productivity and ground cover. 
Finally, it lists the acceptable grass species based on land use for 
revegetation productivity and ground cover.

[[Page 72349]]

    The Federal regulations at 30 CFR 816.116(a), 817.116(a), and 
823.15 contain the requirements for revegetation success standards. 
Kansas, by providing to the public a list of selected acceptable and 
unacceptable plant species and providing opportunity for public 
comment, has met Federal regulatory requirements. We are approving the 
revisions to Appendix A.
Appendix C, Production Data
    Kansas, at Appendix C, has adopted by reference the NRCS production 
data found in the NRCS Soil Data Mart located at https://
soildatamart.nrcs.usda.gov/.
    The Federal regulations at 30 CFR 816.116(a)(2), 817.116(a)(2), and 
823.15 contain the requirements for revegetation success standards. 
Because Kansas revisions meet these requirements and based on our 
technical review and a concurrence letter from the NRCS, we are 
approving the revisions to Appendix C.
Appendix B, Animal Unit Month-Methods of Production Success Standard 
Calculations; Appendix D, Planting Reports; Appendix E, Reference Area 
Criteria; Appendix F, Representative Sample Field Area Definition and 
Test Plot Criteria; and Appendix G, Measuring Grain Moisture
    Kansas either proposed no revisions or nonsubstantive revisions to 
the previously approved information contained in Appendices B, D, E, F, 
and G. We find that the information in these appendices continues to 
meet the requirements of 30 CFR 816.116(a)(1), 817.116(a)(1) and 
823.15.

B. Normal Husbandry Practices for Surface-Mined Lands in Kansas

    Kansas proposed to revise its existing husbandry practice regarding 
rills and gullies, and to add new husbandry practices for surface mined 
lands in Kansas. Kansas changed its husbandry practice guidelines for 
the repair of rills and gullies by updating the name of the United 
States Department of Agriculture's Soil Conservation Service to its 
current name of the NRCS, and to add further clarification to these 
guidelines.
    Kansas added new husbandry practices for liming, fertilization, 
mulching, seeding or stocking (stems) following the reclamation of any 
temporary roads, temporary sediment or hydraulic control structures, or 
areas where the vegetation was disturbed by vehicular traffic not under 
the control of the permittee.
    Kansas added another approved husbandry practice stating that 
reliming and/or refertilization of revegetated areas, reseeding 
cropland in annual crops; or renovating pastureland or cropland areas 
in perennial cover by overseeding with legumes after a Phase II bond 
release shall be considered normal husbandry practices and shall not 
restart the liability period if the amount and frequency of these 
practices do not exceed normal husbandry practices used on unmined land 
within the region.
    Kansas added another approved husbandry practice on postmining land 
uses of fish and wildlife habitat, recreation, and forestry, that 
allows disease, pest, and vermin control; and any pruning, reseeding, 
and transplanting specifically necessitated by such actions. Replanting 
of more than 20% of the trees/shrubs needed to meet the established 
technical success will restart the 5 year liability time clock. Trees 
and shrubs counted in determining the success of stocking shall be 
healthy and have been in place for not less than two growing seasons. 
At the time of bond release, at least 80% of the trees and shrubs used 
to determine such success shall have been in place for a minimum of 
three years.
    In addition, Kansas added a list of approved husbandry practices 
from selected Kansas State University (KSU), NRCS, and Kansas Forestry 
publications. Kansas, in determining what is an approved selective 
husbandry practice, used SMS professional judgments, the incorporation 
of guidelines provided by approved source documents, and information 
provided by KSU and NRCS.
    Kansas stated that the use of its selective husbandry practices 
will not result in an extension to the period of responsibility for 
revegetation success and bond liability and that the probability of 
permanent revegetation failure will not be increased if the approved 
practices are discontinued after expiration of the liability period. 
Practices not approved and which will result in an extension of the 
liability period include any seeding, fertilization, or irrigation 
performed at levels which exceed those normally applied in maintaining 
comparable unmined land in the surrounding area.
    The Federal regulation at 30 CFR 816.116(c)(4), and 817.117(c)(4) 
provide that the regulatory authority may approve selective husbandry 
practices, excluding augmented seeding, fertilization, or irrigation, 
provided it obtains prior approval from OSM in accordance with 30 CFR 
732.17 that the practices are normal husbandry practices, without 
extending the period of responsibility for revegetation success and 
bond liability. This Federal regulation also requires that normal 
husbandry practices must be normal husbandry practices within the 
region for unmined lands having land uses similar to the approved 
postmining land use of the disturbed area, and that if such practices 
can be expected to continue as part of the postmining land use, or if 
they are discontinued after the liability period expires, the 
probability of permanent revegetation success will not be reduced. We 
are approving Kansas' normal husbandry practices because they are no 
less effective than the Federal regulation.

C. Kansas Regulations

    Kansas proposed to revise the following previously approved 
regulations.
1. K.A.R. 47-4-14a, Public Hearing
    a. Kansas made changes at K.A.R. 47-4-14a(c)(2) Document filing. 
Kansas deleted the language, ``administrative appeals section of the 
Kansas department of health and environment, suite 400D, 109 SW 9th, 
Topeka, Kansas 66612-1215,'' and replaced it with the language, 
``office of administrative hearings, a division of the Kansas 
department of administration,'' indicating where all documents are to 
be filed regarding an administrative hearing. All other provisions of 
KAR 47-4-14a(c) were previously approved by OSM.
    Based on our review of Kansas' public hearing and administrative 
appeals rules, we find that they are no less effective then the Federal 
regulations. Therfore, we are approving this section.
    b. Kansas made changes at K.A.R. 47-4-14a(d)(2)(A) Presiding 
officer. Kansas proposed to delete, ``the secretary or one or more 
other persons designated by the secretary,'' and add, ``administrative 
hearing officer from the office of administrative hearings.'' Kansas 
proposed to delete paragraph (d)(2)(F) that allows for hearing officers 
from another state agency to conduct proceedings under these 
regulations.
    The Federal regulation at 30 CFR 775.11(b) pertaining to 
administrative hearings under State programs does not contain a 
provision regarding presiding officers for administrative hearings. We 
find that the changes by Kansas are not inconsistent with the Federal 
regulations; therefore, we are approving them.
    c. Kansas proposed to deleted paragraph (d)(3)(A) that states, ``a 
presiding officer shall be assigned by the department for the 
prehearing conference, exercising the same

[[Page 72350]]

discretion as is provided by subsection (d)(2) concerning the selection 
of a presiding officer for a hearing.''
    The Federal regulations at 30 CFR 773.6(c) and 775.11(b) pertaining 
to informal conferences and administrative hearings, respectively, do 
not contain a provision regarding assigning presiding officers for 
prehearing conferences with the same discretionary powers as a 
presiding officer for a hearing. The Federal regulation at 30 CFR 
775.11(b) does state that no person who presided at an informal 
conference under 30 CFR 773.6(c) shall either preside at the hearing or 
participate in the decision following the hearing or administrative 
appeal. We find that the changes by Kansas are not inconsistent with 
the Federal regulations; therefore, we are approving them.
2. K.A.R. 47-5-5a, Civil Penalties
    a. Kansas made revisions at K.A.R. 47-5-5a(a)(4), Determination of 
amount of penalty, where it proposed to replace the table in 30 CFR 
845.14, adopted by reference, with a new penalty table. The minimum 
proposed penalty is $20 and increases to a maximum proposed penalty of 
$5,000.
    At K.A.R. 47-5-5a(a)(5), Assessment of separate violations for each 
day, Kansas adopted by reference 30 CFR 845.15, except that it 
decreased the minimum assessed civil penalty. The current Federal 
regulations specify a minimum penalty of $1,025 for each day a 
violation continues. Kansas has reduced this to $750 per day.
    Section 518(i) of SMCRA requires that the civil penalty provisions 
of each State program contain penalties which are ``no less stringent 
than'' those set forth in SMCRA. Our regulations at 30 CFR 840.13(a) 
specify that each State program shall contain penalties which are no 
less stringent than those set forth in section 518 of the Act and shall 
be consistent with 30 CFR part 845. However, in a 1980 decision on 
OSM's regulations governing civil monetary penalties (CMPs), the U.S. 
District Court for the District of Columbia held that because Section 
518 of SMCRA fails to enumerate a point system for assessing civil 
penalties, the imposition of this requirement upon the States is 
inconsistent with SMCRA. In response to the Secretary of the Interior's 
request for clarification, the Court further stated that it could not 
uphold requiring the States to impose penalties as stringent as those 
appearing in 30 CFR 845.15. Instead, section 518(i) of the Act requires 
only the incorporation of penalties and procedures explained in section 
518. The system proposed by the State must incorporate the four 
criteria of section 518(a) of SMCRA: (1) History of previous 
violations, (2) seriousness of the violation, (3) negligence of the 
permittee, and (4) good faith of the permittee in attempting to achieve 
compliance. As a result of the litigation, 30 CFR 840.13(a) was 
suspended in part on August 4, 1980 (45 FR 51548) by suspending the 
requirement that penalties shall be consistent with 30 CFR part 845. 
Consequently, we cannot require that the CMP provisions contained in a 
State's regulatory program mirror the penalty provisions of our 
regulations at 30 CFR 845.14 and 845.15.
    We are approving Kansas' revisions at K.A.R. 47-5-5a because they 
include the four criteria used in assessing penalties as identified in 
section 518(a) of SMCRA, consistant with the 1980 U.S. District Court 
decision. Furthermore, Kansas' penalties are no less stringent than 
those set forth in section 518 of the Act.
    b. At K.A.R. 47-5-5a(a)(13), Payment of penalty, Kansas adopted by 
reference 30 CFR 846.18 except that, for subsection (d), Kansas 
incorporated substantially identical language into its regulations. 
Kansas also incorporated into subsection (d) the language for 30 CFR 
870.15(e) through (g) relating to payment of overdue fees. We approve 
these revisions because they are no less effective than the Federal 
regulations.
3. Federal Regulations That Kansas Adopted by Reference

------------------------------------------------------------------------
           Kansas regulations            Federal counterpart regulations
------------------------------------------------------------------------
K.A.R. 47-5-5a(a)(9), Request for        30 CFR 845.19
 hearing.
K.A.R. 47-5-5a(a)(11), Amount of         30 CFR 846.14
 individual civil penalty.
K.A.R. 47-5-5a(a)(12), Procedure for     30 CFR 846.17
 assessment of individual civil penalty.
------------------------------------------------------------------------

    We are approving Kansas' adoptions by reference of the above 
regulations because they are substantially the same as the Federal 
regulations.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment, but did not receive 
any.

Federal Agency Comments

    On December 3, 2007, and February 21, 2008, under 30 CFR 
732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments 
from various agencies with an actual or potential interest in Kansas' 
revised 2006 Revegetation Success Guidelines and Normal Husbandry 
Practices, and its regulations (Administrative Record Nos. 626.06 and 
626.12).
    We received comments from three agencies, the U.S. Fish and 
Wildlife Service, the Kansas Ecological Services Field Office, and the 
Kansas State Historical Society. All three agencies indicated that they 
had no objections to Kansas' proposed regulatory program changes.

Environmental Protection Agency (EPA) Concurrence and Comments

    We are required to get a written concurrence from the Environmental 
Protection Agency (EPA) under 30 CFR 732.17(h)(11)(ii), for those 
provisions of Kansas' program amendments 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.). On 
December 3, 2007, and February 21, 2008, we requested comments on the 
proposed amendments from the EPA (Administrative Record Nos. KS-626.02 
and 626.12). The EPA did not respond to our requests.

V. OSM's Decision

    Based on the above findings, we are approving Kansas' revisions to 
its 2006 Revegetation Success Guidelines and Normal Husbandry Practices 
submitted on November 19, 2007, and its regulations sent to us on 
February 7, 2008.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 916 which codify decisions concerning the Kansas 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. 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. Making this rule effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

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.

[[Page 72351]]

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.

List of Subjects in 30 CFR part 916

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 16, 2008.
Ervin J. Barchenger,
Regional Director, Mid-Continent Region.

0
For the reasons set out in the preamble, 30 CFR part 916 is amended as 
set forth below:

PART 916--KANSAS

0
1. The authority citation for part 916 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
2. Section 916.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  916.15  Approval of Kansas regulatory program amendments.

* * * * *

[[Page 72352]]



------------------------------------------------------------------------
    Original amendment                                     Citation/
      submission date       Date of final publication     description
------------------------------------------------------------------------
 
                              * * * * * * *
November 19, 2007.........  November 28, 2008........  Revegetation
                                                        Success
                                                        Guidelines;
                                                        Normal Husbandry
                                                        Practices;
                                                        Kansas
                                                        Regulations:
                                                        K.A.R. 47-4-
                                                        14a(c)(2),
                                                        (d)(2)(A),
                                                        (d)(3)(A);
                                                        K.A.R. 47-5-
                                                        5a(a)(4),
                                                        (a)(5), (a)(9),
                                                        and (a)(11)
                                                        through (a)(13).
------------------------------------------------------------------------

 [FR Doc. E8-28337 Filed 11-26-08; 8:45 am]
BILLING CODE 4310-05-P