Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 75835

Authority: 49 U.S.C. 106(g), 40113, 44701.

§ 39.13 [Amended]

■ 2. The FAA amends § 39.13 by adding 

the following new airworthiness 

directive (AD):

2004–25–51 Raytheon Aircraft Company:

Amendment 39–13913; Docket No. 

FAA–2004–19896; Directorate Identifier 

2004–CE–44–AD. 

When Does This AD Become Effective? 

(a) This AD becomes effective on December 

21, 2004, to all affected persons who did not 

receive emergency AD 2004–25–51, issued 

December 10, 2004. Emergency AD 2004–25–

51 contained the requirements of this 

amendment and became effective 

immediately upon receipt. 

Are Any Other ADs Affected By This Action? 

(b) None. For clarification, this AD 

provides no relief from the requirements of 

AD 2001–13–18 R1. 

What Airplanes Are Affected by This AD? 

(c) This AD affects Beech Models 45 (YT–

34), A45 (T–34A, B–45), and D45 (T–34B) 

airplanes, all serial numbers, that are 

certificated in any category. 

What Is the Unsafe Condition Presented in 

This AD? 

(d) This AD is the result of cracks found 

in a location that was previously inspected 

and found to comply with AD 2001–13–18 

R1; and two new locations. We are issuing 

this AD to detect and correct such cracking, 

which could result in the wing separating 

from the airplane with consequent loss of 

control of the airplane. 

What Must I Do To Address This Problem? 

(e) The following specifies actions you 

must do per this AD and other pertinent 

information to address this problem:

Actions Compliance 

(1) Perform an inspection and/or modification program approved specifically for this AD by the FAA Wichita Aircraft Certification Office 

(ACO).

Prior to further flight after December 21, 2004 (the effective date of this 

AD), except that this action was already required prior to further flight 

upon receipt for those who received emergency AD 2004–25–51. 

(2) To return/position the airplane to a home base, hangar, maintenance facility, etc., you may operate the airplane provided you follow 

the limitations in paragraph (f) of this AD.

You may operate the airplane up to 10 hours time-in-service (TIS) provided the flight(s) occur(s) no later than 30 days after December 21, 

2004, except that this provision was already given to those who received emergency AD 2004–25–51. This is a one-time provision. 

(3) Special flight permits are allowed for this AD. See paragraph (f) of 

this AD for restrictions.

Use the procedures in 14 CFR part 39 and the restrictions in paragraph (f) of this AD. 

(4) To help in the long-term airworthiness solution for the safety and 

continued airworthiness of these airplanes, FAA is requesting data 

from every owner/operator on the following on these airplanes: 

(i) Service/Repair History (cracked/fatigued structure); 

(ii) Maintenance Schedule; and 

(iii) Total Hours Time-In-Service (TIS). 

Send to Paul Nguyen, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Mid-Continent Airport, Wichita, 

Kansas 67209; telephone: (316) 946–4125; facsimile: (316) 946–

4107; e-mail: paul.nguyen@faa.gov.

What Are the Flight Restrictions Specified in 

Paragraph (e)(2) and (e)(3) of This AD? 

(f) During the time allowed before 

compliance with paragraph (e)(1) of this AD 

or for any approved special flight permit, you 

must adhere to the following limitations: 

(1) NEVER EXCEED SPEED, VNE–175 

MPH (152 knots). 

(2) NORMAL ACCELERATION (G) LIMITS 

¥0, and +2.5. 

(3) ACROBATIC MANEUVERS 

PROHIBITED. 

(4) FLIGHT INTO KNOWN OR FORECAST 

MODERATE OR SEVERE TURBULENCE IS 

PROHIBITED. 

(5) DAY VISUAL FLIGHT RULES (VFR) 

OPERATION ONLY. 

(6) PILOT AND ANY ADDITIONAL 

FLIGHT CREW MEMBER REQUIRED FOR 

SAFE OPERATION. 

Who Do I Contact for Further Information? 

(g) If you need additional information 

relating to this AD, contact: Paul Nguyen, 

Aerospace Engineer, FAA, Wichita Aircraft 

Certification Office, 1801 Airport Road, MidContinent Airport, Wichita, Kansas 67209; 

telephone: (316) 946–4125; facsimile: (316) 

946–4107; e-mail: paul.nguyen@faa.gov.

Issued in Kansas City, Missouri, on 

December 14, 2004. 

James E. Jackson, 

Acting Manager, Small Airplane Directorate, 

Aircraft Certification Service.

[FR Doc. 04–27708 Filed 12–17–04; 8:45 am] 

BILLING CODE 4910–13–P

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 121

Operating Requirements: Domestic, 

Flag, and Supplemental Operations

CFR Correction 

In Title 14 of the Code of Federal 

Regulations, parts 60 to 139, revised as 

of January 1, 2004, on page 474, 

§ 121.385 is corrected by adding 

paragraph (d) to read as follows:

§ 121.385 Composition of flight crew.

* * * * *

(d) On each flight requiring a flight 

engineer at least one flight crewmember, 

other than the flight engineer, must be 

qualified to provide emergency 

performance of the flight engineer’s 

functions for the safe completion of the 

flight if the flight engineer becomes ill 

or is otherwise incapacitated. A pilot 

need not hold a flight engineer’s 

certificate to perform the flight 

engineer’s functions in such a situation.

[FR Doc. 04–55529 Filed 12–17–04; 8:45 am] 

BILLING CODE 1505–01–D

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 917

[KY–247–FOR] 

Kentucky Regulatory Program

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior.

ACTION: Final rule; approval of 

amendment. 

SUMMARY: We are approving an 

amendment to the Kentucky regulatory 

program (the ‘‘Kentucky program’’) 

under the Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act). Kentucky proposes to revise its 

statutes regarding easements of 

necessity and submitted the amendment 

at its own initiative.

EFFECTIVE DATE: December 20, 2004.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Telephone: (859) 

260–8400. Telefax number: (859) 260–

8410.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program 

II. Submission of the Proposed Amendment 

III. OSM’s Findings 

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

75836 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

VI. Procedural Determinations

I. Background on the Kentucky 

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 State 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 the Act * * * and rules 

and regulations consistent with 

regulations issued by the Secretary 

pursuant to the 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 Kentucky 

program on 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 

in the May 18, 1982, Federal Register

(47 FR 21434). You can also find later 

actions concerning Kentucky’s program 

and program amendments at 30 CFR 

917.11, 917.12, 917.13, 917.15, 917.16 

and 917.17. 

II. Submission of the Proposed 

Amendment 

By letter dated May 14, 2004, 

Kentucky sent us an amendment to its 

program (KY–247–FOR, Administrative 

Record No. KY–1624). Kentucky 

submitted House Bill (HB) 537 

promulgated by the 2004 Kentucky 

General Assembly. It amends the 

Kentucky Revised Statutes (KRS) at 

350.280 pertaining to easements of 

necessity. Easements are proposed when 

a notice or cessation order directs 

abatement of a violation and the 

permittee or operator does not have the 

legal right of entry to the property to 

abate the violation and the owner or 

legal occupant has refused access. 

Easements authorize the permittee or 

operator to enter the property to abate 

the violation and an appraiser to enter 

the property to appraise damages that 

likely will result from the violation.

We announced receipt of the 

proposed amendment in the July 19, 

2004, Federal Register (69 FR 42939), 

and in the same document invited 

public comment and provided an 

opportunity for a public hearing on the 

adequacy of the proposed amendment. 

The public comment period closed on 

August 18, 2004. We received one 

Industry comment. 

III. OSM’s Findings 

Following are the findings we made 

concerning the amendment under 

SMCRA and the Federal regulations at 

30 CFR 732.15 and 732.17. Relevant to 

our findings in this document are two 

previous Federal Register notices in 

which we addressed Kentucky’s 

easement of necessity provisions. On 

June 20, 2001, we approved the creation 

of an easement of necessity for a 

permittee or operator who lacks legal 

right of entry, or permission to enter 

land to abate conditions that create 

imminent danger to the public or 

imminent significant environmental 

harm as cited in a notice or order of 

cessation under the approved Kentucky 

program (66 FR 33020). On November 6, 

2002, we approved the creation of an 

easement of necessity for a permittee or 

operator who lacks legal right of entry, 

or permission to enter land to abate 

conditions that result in a violation that 

does not cause imminent danger to the 

public or imminent significant 

environmental harm. In the same notice, 

we approved Kentucky’s property 

damage appraisal procedures, which 

follow the effective date of an easement 

of necessity, to the extent that the 

appraisal processes do not delay the 

abatement of violations (67 FR 67524). 

The appraisal processes provide for the 

appraisal of damages, including loss of 

use, that will result from the violations, 

as abated, and those that are likely to 

occur to the property if the permittee or 

operator is allowed to enter the property 

to abate the violation. 

Any revisions that we do not 

specifically discuss below concern 

nonsubstantive wording or editorial 

changes. The following subsections 

represent the changes to KRS 350.280. 

Easements of Necessity for Notices or 

Cessation Orders Directing Abatement 

of a Violation on the Basis of an 

Imminent Danger to Health and Safety 

of the Public or Significant Imminent 

Environmental Harm 

Subsection (1)(b)—Kentucky proposes 

to delete the language within the 

parentheses in the following paragraph: 

If a permittee or operator has been 

issued a notice or order directing 

abatement of a violation on the basis of 

an imminent danger to health and safety 

of the public or significant imminent 

environmental harm (and the violation 

involves an order of cessation and 

immediate compliance or an order to 

abate and alleviate in which the cabinet 

directs the permittee or operator to 

begin immediate abatement of the 

violation), and the notice or order 

requires access to property for which 

the permittee or operator does not have 

the legal right of entry necessary in 

order to abate that violation, and the 

owner or legal occupant of the property 

has refused access, an easement of 

necessity is recognized on behalf of the 

permittee or operator for the limited 

purpose of abating that violation. The 

easement of necessity becomes effective, 

and the permittee or operator is 

authorized to enter the property to 

undertake immediate action to abate the 

violation if he or she takes the actions 

specified in (1)(b)1 through 3. 

Subsection (1)(b)1—Kentucky 

proposes to add the italicized language 

in the following subsection, which 

immediately follows the language 

above: 

Provides to the property owner or 

legal occupant a copy of the cabinet’s 

order and a plan of action reasonably 

calculated to result in abatement of the 

violation, repair of the damage, and 

restoration of the property, and provides 

proof of liability insurance and workers’ 

compensation insurance covering any 

accidents or injuries occurring on the 

property during the remedial work.

Subsections (1)(b) and (1)(b)1 were 

originally approved on June 20, 2001, as 

no less stringent than Section 521 of 

SMCRA and consistent with 30 CFR 

843.11 because they provided a method 

for ensuring the abatement of an 

imminent danger that is in addition to 

the methods provided for in the Federal 

rules. The revisions Kentucky proposes 

in this amendment do not alter that 

finding. Therefore, subsections (1)(b) 

and (1)(b)1 are approved in accordance 

with Section 505(b) of SMCRA. 

Subsection (1)(b)3—Kentucky 

proposes to add the italicized language 

and delete the language within the 

parentheses in the following subsection: 

Provides to the property owner or 

legal occupant a statement that he or 

she, the permittee or operator, will 

diligently pursue abatement of the 

violation, and will obtain an appraisal 

completed by a (certified) real estate 

appraiser certified under KRS 324A (or 

other qualified appraiser) of the 

damages to the property, including loss 

of use, that have resulted (will result) 

from the violation, (as abated, and those 

that are likely to occur to the property 

when the permittee or operator enters 

the property in order to abate the 

violation,) that the appraisal will be 

completed and provided to the property 

owner or legal occupant within three 

days of abatement of the violation by 

(entry of) the operator or permittee . . . 

Subsection (1)(c)—Kentucky proposes 

to delete the language within the 

parentheses in the following paragraph: 

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 75837

Following the effective date of the 

easement of necessity, the following 

procedure shall be followed with 

respect to the appraisal of the damages 

(that will result from the violation, as 

abated, and those that are likely to occur 

to the property when the permittee or 

operator enters the property in order to 

abate the violation). 

Subsection (1)(c)1—Kentucky 

proposes to require that an appraiser be 

certified and that the appraisal be 

completed and submitted to property 

owner or legal occupant within three 

days of abatement of the violation. The 

current language, proposed for deletion, 

requires completion of the appraisal and 

its submission to the property owner or 

legal occupant within three days of 

‘‘entry on the property.’’

Subsection (1)(c)2—Kentucky 

proposes to extend the timeframe from 

three days to seven days for the property 

owner or legal occupant to accept or 

reject the appraisal. 

Subsection (1)(c)3—Kentucky 

proposes to stipulate that a property 

owner may hire a real estate appraiser 

certified under KRS Chapter 324A if he/

she rejects the permittee’s appraisal. 

The following italicized language 

replaces the language within the 

parentheses: . . . and this such 

appraisal shall be completed and 

provided to the permittee or operator 

within thirty days of receipt of the 

permittee’s or operator’s completed 

appraisal. The appraisal will address 

damages, including loss of use that have 

resulted (will result) from the violation 

(as abated, and those that are likely to 

occur to the property if the permittee or 

operator is allowed to enter the property 

to abate the violation). 

Subsection (1)(c)4—Kentucky 

proposes to replace the language within 

the parentheses with the italicized 

language. If the property owner or legal 

occupant accepts the permittee or 

operator’s appraisal, the permittee or 

operator shall promptly pay the 

property owner or legal occupant the 

amount of the damages reflected therein

(has the appraisal done, he or she shall 

have it completed and provided to the 

permittee or operator within seven days 

of receipt of the permittee’s or operator’s 

completed appraisal).

Subsection (1)(e)—Kentucky proposes 

to require that the appraisal and offer 

shall be considered accepted if the 

property owner or legal occupant does 

not accept or reject said appraisal and 

offer within the timeframe specified in 

subsection (1)(c)2 above. The 

requirement that the operator pay the 

appraised damages to a circuit court 

within three days of nonacceptance is 

deleted. 

Subsection (1)(f)—Kentucky proposes 

to add a new subsection that requires an 

appraiser to calculate damages to the 

property, including loss of use, that 

resulted from the violation. It will be 

calculated as the difference between the 

fair market value of the property before 

the violation and after abatement of the 

violation, plus the reasonable rental 

value of the property between the 

effective date of the easement of 

necessity and the date of abatement of 

the violation. 

Subsections (1)(b)3 and (1)(c) through 

(f), as amended, revise a property 

damage appraisal procedure that has no 

Federal counterpart. On November 6, 

2002, we approved this procedure to the 

extent it does not delay the abatement 

of imminent dangers to the public or 

create environmental harm. The 

revisions Kentucky proposes in this 

amendment require that the appraisal be 

completed within three days of 

abatement of the violation. 

We therefore find the revisions do not 

change the basis for our November 6, 

2002, approval. That is, the revisions 

discussed above are approved to the 

extent that they do not cause a delay in 

the abatement of imminent dangers to 

the public or of significant, imminent 

environmental harm. 

Easements of Necessity for Abatement 

of Violations That Do Not Cause 

Imminent Danger to the Public or 

Significant Imminent Environmental 

Harm 

Subsection (2)—Kentucky proposes to 

specify that an appraiser be certified 

under KRS Chapter 324. Damages are 

described as those that likely will result 

from the violation. The following 

language within the parentheses 

describing damages has been deleted: 

* * * damages, including loss of use, 

that likely will result from the violation 

(as abated, and those that are likely to 

occur to the property if the permittee or 

operator is allowed to enter the property 

in order to abate the violation). 

Subsection (3)(a)—Kentucky proposes 

to add a reference to subsection (2) 

pertaining to an easement for the 

limited purpose of allowing an 

appraisal. 

Subsection (3)(a)4—Kentucky 

proposes to make the same changes as 

those specified in subsection (2) above. 

Kentucky is also requiring an entry fee 

to be calculated as one-half of the 

amount of the appraisal or $500, 

whichever is greater, for the privilege to 

enter the property and conduct the 

appraisal. 

Subsection (3)(b)—Kentucky proposes 

to add a new subsection to specify that 

upon payment of the entry fee, an 

easement of necessity will be recognized 

on behalf of the permittee or operator 

for the limited purpose of abating the 

violation. Entry is authorized to enter 

the property to undertake immediate 

action to abate the violation, provided 

that the landowner has been provided a 

plan of action reasonably calculated to 

result in abatement of the violation, 

repair of the damage, and restoration of 

the property. The permittee or operator 

must provide proof of liability insurance 

and workers’ compensation. 

Subsection (3)(c)—Kentucky proposes 

to specify that following the effective 

date of the easement of necessity to 

abate the violation, the procedures in 

subsection (1)(c)–(f) will apply. Entry 

fee stipulations are provided. They 

require that the entry fee be deducted 

from any subsequent payment deemed 

due the property owner or legal 

occupant as a result of the postabatement appraisal. If the entry fee 

exceeds the amount of all appraisals, the 

property owner or legal occupant is 

entitled to retain the fee in its entirety. 

The following sentence has been 

deleted. ‘‘When the easement takes 

effect, the property owner or legal 

occupant shall allow access for the 

permittee’s or operator’s certified real 

estate appraiser or other qualified 

appraiser to conduct the appraisal.’’

Subsection (4)—Kentucky proposes to 

clarify that the provisions of Section 1 

of KRS 350.280 do not affect the right 

to bring a civil action for damages. The 

existing language pertaining to the 

appraisal of damages at subsections (4) 

through (8) is deleted, presumably 

because the appraisal procedures in 

subsections (1)(c) through (1)(f) will 

now likewise apply to violations that do 

not cause imminent damages to the 

public or significant, imminent 

environmental harm. 

Like subsection (1) above, subsection 

(2) creates an appraisal procedure that 

has no Federal counterpart. Subsection 

(2) also provides for an entry fee with 

no Federal counterpart. On November 6, 

2002, we approved the appraisal process 

to the extent that it does not delay the 

abatement of violations beyond 90 days 

as required by 30 CFR 843.12(c). We 

make the same finding in this notice. 

We further find that Kentucky’s 

proposed entry fees are not inconsistent 

with SMCRA. Finally, because the 

deleted provisions at subsections (4) 

through (8) have been addressed in the 

revisions at subsections (1) and (2) 

above, we find that the deletions do not 

render the Kentucky program less 

stringent than SMCRA or the Federal 

regulations. 

75838 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

IV. Summary and Disposition of 

Comments 

Public Comments 

We solicited public comments on July 

19, 2004, and provided an opportunity 

for a public hearing on the amendment. 

Because no one requested an 

opportunity to speak, a hearing was not 

held. The Kentucky Coal Association 

(KCA) submitted comments by 

electronic mail dated August 2, 2004 

(Administrative Record No. KY–1633). 

The KCA supports the revisions 

proposed by Kentucky because it 

believes coal operators will have 

reasonable access to property when they 

‘‘inadvertently impact land off their 

permitted property.’’

Federal Agency Comments 

According to 30 CFR 732.17(h)(11)(i), 

on July 29, 2004, we solicited comments 

on the proposed amendment submitted 

on May 14, 2004, from various Federal 

agencies with an actual or potential 

interest in the Kentucky program 

(Administrative No. KY–1631). We 

received no responses. 

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), 

OSM is required to obtain the written 

concurrence of the EPA with respect to 

those provisions of the proposed 

program amendment that relate to air or 

water quality standards promulgated 

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.). Because 

the provisions of this amendment do not 

relate to air or water quality standards, 

we did not request EPA’s concurrence. 

V. OSM’s Decision 

Based on the above findings, we are 

approving the amendment as submitted 

by Kentucky on May 14, 2004. 

To implement this decision, we are 

amending the Federal regulations at 30 

CFR part 917 which codify decisions 

concerning the Kentucky 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 Kentucky’s 

program demonstrate that it has the 

capability of carrying out the provisions 

of the Act and meeting its purposes. 

Making this regulation effective 

immediately will expedite that process. 

SMCRA requires consistency of State 

and Federal standards. 

VI. Procedural Determinations 

Executive Order 12630—Takings 

The provisions in the rule based on 

counterpart Federal regulations do not 

have takings implications. This 

determination is based on the analysis 

performed for the counterpart Federal 

regulation. The revisions made at the 

initiative of the State that do not have 

Federal counterparts have also been 

reviewed and a determination made that 

they do not have takings implications. 

This determination is based on the fact 

that the provisions are administrative 

and procedural in nature and are not 

expected to have a substantive effect on 

the regulated industry. 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

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. 

The basis for this determination is that 

our decision is on a State regulatory 

program and does not involve a Federal 

regulation involving Indian lands. 

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 a portion of the provisions 

in 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.) because they are 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 

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 75839

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. The 

Department of the Interior also certifies 

that the provisions in this rule that are 

not based upon counterparts Federal 

regulations 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.). This determination is based on 

the fact that the provisions are 

administrative and procedural in nature 

and are not expected to have a 

substantive effect on the regulated 

industry. 

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 a portion of the State provisions are 

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. For the portion 

of the State provisions that is not based 

upon counterpart Federal regulations, 

this determination is based upon the 

fact that the State provisions are 

administrative and procedural in nature 

and are not expected to have a 

substantive effect on the regulated 

industry. 

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 a portion of 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. For the portion 

of the State provisions that is not based 

upon counterpart Federal regulations, 

this determination is based upon the 

fact that the State provisions are 

administrative and procedural in nature 

and are not expected to have a 

substantive effect on the regulated 

industry.

List of Subjects in 30 CFR Part 917 

Intergovernmental relations, Surface 

mining, Underground mining.

Dated: October 18, 2004. 

Brent Wahlquist, 

Regional Director, Appalachian Regional 

Coordinating Center.

■ For the reasons set out in the preamble, 

30 CFR part 917 is amended as set forth 

below:

PART 917—KENTUCKY

■ 1. The authority citation for part 917 

continues to read as follows:

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

■ 2. Section 917.15 is amended in the 

table by adding a new entry in 

chronological order by the ‘‘Date of Final 

Publication’’ to read as follows:

§ 917.15 Approval of Kentucky regulatory 

program amendments.

* * * * *

Original amendment submission 

date 

Date of final

publication Citation/description 

* * * * * * * 

May 14, 2004 ................................. December 20, 2004 ....................... KRS 350.280, subsections (1) (b), (1) (c), 1(e), 1(f), (2), (3), (4); subsections 4(a)–(d), (5), (6), (7) and (8) are deleted. 

[FR Doc. 04–27754 Filed 12–17–04; 8:45 am] 

BILLING CODE 4310–05–P

DEPARTMENT OF THE TREASURY

Office of the Secretary 

31 CFR Part 10 

[TD 9165] 

RIN 1545–BA70 

Regulations Governing Practice Before 

the Internal Revenue Service

AGENCY: Office of the Secretary, 

Treasury.

ACTION: Final regulations.

SUMMARY: This document contains final 

regulations revising the regulations 

governing practice before the Internal 

Revenue Service (Circular 230). These 

regulations affect individuals who 

practice before the Internal Revenue 

Service. These final regulations set forth 

best practices for tax advisors providing 

advice to taxpayers relating to Federal 

tax issues or submissions to the IRS. 

These final regulations also provide 

standards for covered opinions and 

other written advice.

DATES: Effective Date: These regulations 

are effective December 20, 2004. 

Applicability Date: For dates of 

applicability, see §§ 10.33(c),10.35(g), 

10.36(b), 10.37(b), 10.38(b), 10.52(b), 

and 10.93.

FOR FURTHER INFORMATION CONTACT:

Heather L. Dostaler at (202) 622–4940, 

or Brinton T. Warren at (202) 622–7800 

(not toll-free numbers).

SUPPLEMENTARY INFORMATION: 

Paperwork Reduction Act 

The collection of information 

contained in these final regulations has 

been reviewed and approved by the 

Office of Management and Budget in 

accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

3507(d)) under control number 1545–

1871. The collections of information 

(disclosure requirements) in these final 

regulations are in § 10.35(e). Section 

10.35(e) requires a practitioner 

providing a covered opinion to make 

certain disclosures in the beginning of 

marketed opinions, limited scope 

opinions and opinions that fail to 

conclude at a confidence level of at least 

more likely than not. In addition, 

certain relationships between the 

practitioner and a person promoting or 

marketing a tax shelter must be 

disclosed. A practitioner may be 

required to make one or more 

disclosures. The collection of this 

material helps to ensure that taxpayers 

who receive a tax shelter opinion are 

informed of any facts or circumstances 

that might limit the use of the opinion. 

The collection of information is 

mandatory.