Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Proposed Rules 36097

dated October 27, 1994, and Boeing Service

Bulletin 757–54–0036, dated May 14, 1998,

as applicable, in accordance with those

service bulletins.

(c) If any damage to airplane structure is

found during the accomplishment of the

modification required by paragraph (a) of this

AD; and the service bulletin specifies to

contact Boeing for appropriate action: Prior

to further flight, repair in accordance with a

method approved by the Manager, Seattle

Aircraft Certification Office (ACO), FAA,

Transport Airplane Directorate. For a repair

method to be approved by the Manager,

Seattle ACO, as required by this paragraph,

the Manager’s approval letter must

specifically reference this AD.

Alternative Methods of Compliance

(d) An alternative method of compliance or

adjustment of the compliance time that

provides an acceptable level of safety may be

used if approved by the Manager, Seattle

ACO. Operators shall submit their requests

through an appropriate FAA Principal

Maintenance Inspector, who may add

comments and then send it to the Manager,

Seattle ACO.

Note 2: Information concerning the

existence of approved alternative methods of

compliance with this AD, if any, may be

obtained from the Seattle ACO.

Special Flight Permits

(e) Special flight permits may be issued in

accordance with sections 21.197 and 21.199

of the Federal Aviation Regulations (14 CFR

21.197 and 21.199) to operate the airplane to

a location where the requirements of this AD

can be accomplished.

Issued in Renton, Washington, on June 1,

2000.

Donald L. Riggin,

Acting Manager, Transport Airplane

Directorate, Aircraft Certification Service.

[FR Doc. 00–14315 Filed 6–6–00; 8:45 am]

BILLING CODE 4910–13–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Parts 701, 724, 773, 774, 778,

842, 843, and 846

RIN 1029–AB94

Application and Permit Information

Requirements; Permit Eligibility;

Definition of Ownership and Control;

the Applicant/Violator System;

Alternative Enforcement Actions

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Proposed rule; reopening and

extension of comment period.

SUMMARY: On December 21, 1998 (63 FR

70580), we, the Office of Surface Mining

(OSM), proposed a rule to amend our

permanent program regulations for

surface coal mining operations under

the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C.

1201, et seq., as amended (SMCRA or

the Act). We are reopening the comment

period for the proposed rule in light of

a judicial decision in a case decided

after the close of the comment period.

The comment period was originally

scheduled to close on February 19,

1999, but was subsequently extended to

March 25, 1999 (64 FR 8763; Feb. 23,

1999), then to April 15, 1999 (64 FR

15322; March 31, 1999), and ultimately

to May 10, 1999 (64 FR 23811; May 4,

1999). Shortly thereafter, on May 28,

1999, the U.S. Court of Appeals for the

District of Columbia Circuit handed

down a decision in National Mining

Ass’n v. U.S. Dept. of the Interior, 177

F.3d 1 (D.C. Cir. 1999) (NMA v. DOI II).

Because we incorporated certain

provisions and concepts into our

December 21, 1998 proposed rule,

which were later invalidated by the

court, we feel it advisable to obtain

input from the public on the effects of

the appeals court’s decision on our

proposed rule. By this notice, we are

reopening and extending the comment

period for an additional 30 days to seek

comments on the effects of the court

decision on our proposed rule so that

we can ensure that our final rule is

consistent with the NMA v. DOI II

decision.

DATES: We will accept written

comments until 5 p.m., Eastern time on

July 7, 2000. We will consider only

those comments received within the

allowed time period.

ADDRESSES: You may mail or handdeliver comments to the Office of

Surface Mining, Administrative Record

Room 101, 1951 Constitution Avenue,

NW., Washington, DC, 20240. You may

also submit comments to OSM via the

Internet at: osmrules@osmre.gov.

Comments sent via the Internet should

be in an ASCII, Word, or WordPerfect

file, and you should avoid using special

characters and any form of encryption.

Please also include ‘‘Attn: RIN 1029–

AB94’’ and your name and return

address in your Internet message. If you

do not receive a confirmation from the

system that we have received your

Internet message, contact us directly at

(202) 208–2847.

FOR FURTHER INFORMATION CONTACT:

Stephen J. McEntegart, Office of Surface

Mining, 1951 Constitution Avenue,

NW., Washington, DC, 20240.

Telephone: (202) 208–2968; e-mail:

smceteg@osmre.gov.

SUPPLEMENTARY INFORMATION

I. Public Comment Procedures

Written comments submitted by mail,

electronically, or in person, should be

specific, confined to issues pertinent to

this reopening, and explain the bases for

the comments. Please submit three

copies of your comments if possible. We

must stress that we will consider only

comments which are germane to the

effects of the NMA v. DOI II decision on

our December 21, 1998 proposed rule:

conversely, we will not consider

comments which do not pertain to the

effects of the court decision and which

could have been submitted during the

previous comment periods. All of the

comments we received thus far are part

of the rulemaking record, and we will

consider both those comments and

comments received under the new

comment period associated with this

notice before issuing a final rule.

Therefore, commenters should not

resubmit earlier comments.

We are specifying a 30 day deadline

for comments, which we believe is

appropriate because of the limited

nature of this reopening; the fact that

the pertinent appeals court’s rulings are,

for the most part, subject to

straightforward interpretation; the fact

that we previously extended and

reopened the comment period serial

times for the initial proposed rule; and

our desire to expedite promulgation of

a final rule. In view of the above

considerations, we will not extend the

comment period beyond 30 days.

II. Summary of NMa v. DOI II as it

Affects our December 21, 1998

Proposed Rule

In June 1997, NMA filed suit in the

U.S. District Court for the District of

Columbia, challenging the validity of

our April 21, 1997, interim final rule

(IFR) (62 FR 19450) on broad grounds.

On June 15, 1998, the district court

issued a decision upholding the IFR in

its entirety. National Mining Ass’n v.

Babbitt, No. 97–1418 (AER) (D.D.C. June

15, 1998).

On May 28, 1999, the U.S. Court of

Appeals for the District of Columbia

Circuit issued its decision in NMA’s

appeal of the district court’s ruling.

National Mining Ass’n. v. U.S. Dep’t of

the interior, 177 F.3d 1 (D.C. Cir. 1999)

(NMA v. DOI II). The court upheld

several provisions of the IFR, but

invalidated others. Three of the court’s

holding invalidating provisions of the

IFR are pertinent to this reopening

because we incorporated the invalidated

provisions and/or underlying concepts

into the proposed rule. Since our final

rule must be consistent with NMA v.

DOI II, we invite your comments on

36098 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Proposed Rules

how these three holdings affect our

proposed rule. These three holdings are

described below.

First, the court held that ‘‘[f]or

violations of an operation that the

applicant ‘has controlled’ but no longer

does, * * * the Congress authorized

permit-blocking only if there is ‘a

demonstrated pattern of willful

violations’ ’’ under section 510(c) of

SMCRA. Id. at 5. In other words, if an

applicant severs its ownership or

control relationship to an operation

with a current violation, OSM, in

general, may not consider that violation

in making a permit eligibility decision

under section 510(c) of the Act. Stated

differently, in addition to the violation

being current and ongoing, the applicant

must also own or control the operation

with a violation at the time of

application; if the ownership or control

relationship has been terminated, OSM

may not deny a permit (absent a pattern

of willful violations), even if the

violation remains current and ongoing.

NMA v. DOI II, 177 F.3d at 5. OSM may

consider such past ownership or control

of operations with violations only in

determining whether there has been a

‘‘demonstrated pattern of willful

violations’’ warranting permanent

permit ineligibility under section510(c).

This holding affects 773.15(b)(3) and

773.16(a) of our proposed rule;

therefore, we invite your comments on

the effect of the court’s ruling on these

provisions.

Second, the court found that the IFR’s

provision requiring permit denials

based on indirect ownership or control

of operations with violations is

impermissibly retroactive because our

1988 ownership and control rule

imposed a ‘ ‘‘new disability,’ permit

ineligibility, based on ‘transactions or

considerations already past. . . .’ ’’ Id.

at 8. As such, the court held that the IFR

is retroactive ‘‘insofar as it block [sic]

permits based on transactions

(violations and control) antedating

November 2, 1988, the [1988]

Ownership and Control Rule’s effective

date.’’ Id.

However, the court explained that the

IFR is not retroactive to the extent it

allows permit denials when an

applicant acquires control of an

operation with an ongoing, pre-rule

violation on or after the effective date of

the 1988 ownership and control rule. Id.

at n.12. This is so because one of the

relevant transactions—assumption of

control—will have occurred on or after

November 2, 1988; as such, as of

November 2, 1988, the applicant would

be on notice that this type of

transaction, which post-dates the

effective date of the 1988 rule, could

affect his or her eligibility to receive a

permit. This holding affects sections

773.15(b)(3) and 773.16(a) of our

proposed rule; therefore, we invite your

comments on the effect of the court’s

ruling on these provisions. Finally, with regard to the IFR’s

suspension and rescission provisions

relative to improvidently issued

permits, the court agreed with OSM that

section 201(c) of SMCRA, 30 U.S.C.

1211(c), expressly authorizes OSM to

suspend or rescind improvidently

issued permits. In addition to that

express authority, the court also found

that OSM retained ‘‘implied’’ authority

to suspend or rescind improvidently

issued permits ‘‘because of its express

authority to deny permits in the first

instance.’’ Id. at 9. However, the court

decided that OSM may only order

cessation of State-permitted operations

pursuant to the procedures established

under section 521 of SMCRA, 30 U.S.C.

1271. Specifically, OSM may order

immediate cessation of State-permitted

operations if those operations pose an

‘‘imminent danger to the health or safety

of the public, or is causing, or can

reasonably be expected to cause

significant, imminent environmental

harm . . .’’ SMCRA § 521(a)(2), 30

U.S.C. 1271(a)(2). Absent these

circumstances, and after OSM complies

with the ten-day notice procedure

contained in 30 CFR 843.21(c), OSM

may order cessation of a State-permitted

operation only if it: (1) Provides a notice

of violation to the permittee or his

agent; (2) establishes an abatement

period; (3) provides opportunity for a

public hearing and (4) makes a written

finding that abatement of the violation

has not occurred within the abatement

period. Id. at 9–10; SMCRA § 521(a)(3),

30 U.S.C. 1271(a)(3). This holding

affects section 843.21(d) of our proposed

rule; therefore, we invite your

comments on the effect of the court’s

ruling on these provisions. The court’s holdings in the rest of the

NMA v. DOI II litigation do not affect

our proposed rule because either; (1)

OSM prevailed on the particular issued;

or (2) the issue has become moot in that

our proposal does not contain a similar

provision. The court decision is

available from two commercial legal

research services (Lexis and Westlaw),

as well as from the United States Court

of Appeals for the District of Columbia

Circuit’s website (Internet address:

http://www.cadc.uscourt.gov). For your

convenience, we are posting a copy of

the court’s decision on our website at:

http//www.osmre.gov. We will also be

happy to mail or fax you a hard copy of

the decision at your request; please

address requests to the person listed

under FOR FURTHER INFORMATION

CONTACT.

Dated: June 1, 2000.

Kathrine L. Henry,

Acting Director, Office of Surface Mining

Reclamation and Enforcement.

[FR Doc. 00–14355 Filed 6–6–00; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 906

[SPATS No. CO–032–FOR]

Colorado Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Proposed rule; public comment

period and opportunity for public

hearing on proposed amendment.

SUMMARY: Office of Surface Mining

Reclamation and Enforcement (OSM) is

announcing receipt of a proposed

amendment to the Colorado regulatory

program (hereinafter, the ‘‘Colorado

program’’) under the Surface Mining

Control and Reclamation Act of 1977

(SMCRA). Colorado proposes revisions

to rules concerning definitions; permit

application requirements; comment

period for revisions; requirements for

permit approval or denial; and

performance standards for

sedimentation ponds, discharge

structures, impoundments, stream

buffer zones, coal exploration, and coal

processing plants and support facilities

not located at or near the mine site or

not within the permit area for the mine.

Colorado intends to revise its program

to be consistent with the corresponding

Federal regulations, clarify ambiguities,

and improve operational efficiency.

DATES: We will accept written

comments on this amendment until 4

p.m., m.d.t., July 7, 2000. If requested,

we will hold a public hearing on the

amendment on July 3, 2000. We will

accept requests to speak until 4 p.m.,

m.d.t., on June 22, 2000.

ADDRESSES: You should mail or hand

deliver written comments and requests

to speak at the hearing to James F.

Fulton at the address listed below.

You may review copies of the

Colorado program, this amendment, a

listing of any scheduled public hearings,

and all written comments received in

response to this document at the

addresses listed below during normal

business hours, Monday through Friday,

excluding holidays. You may receive