45714 Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations

(9) The claimant shows that it is to his

or her advantage to select a later annuity

beginning date and refunds, by cash

payment or setoff, past payments

applying to the period prior to the later

beginning date, subject, however, to the

provisions of subpart D of part 217 and

§ 218.9 of this chapter;

(10) The decision is incorrect because

of a failure to apply a reduction, or the

proper reduction, to the tier I

component of an annuity, but the Board

shall apply the reduction only for the

months following the month the Board

first takes corrective action.

(d) Revision of the amount or

payment of a separation allowance lump

sum amount pursuant to section 6(e) of

the Railroad Retirement Act is limited to

60 days from the date of notification of

the award of the separation allowance

lump sum payment.

§ 261.3 Change of legal interpretation or

administrative ruling.

A change of legal interpretation or

administrative ruling upon which a

decision is based does not render a

decision erroneous and does not

provide a basis for reopening.

§ 261.4 Decisions which shall not be

reopened.

The following decisions shall not be

reopened:

(a) An award of an annuity beginning

date to an applicant later found to have

been in compensated service to an

employer under part 202 of this chapter

on that annuity beginning date and who

is found not to be at fault in causing the

erroneous award; provided, however,

that this exception shall not operate to

permit payment of benefits for any

month in which the claimant is found

to be engaged in compensated service.

(b) An award of an annuity based on

a subsequently discovered erroneous

crediting of months of service and

compensation to a claimant where:

(1) The loss of such months of service

and compensation will cause the

applicant to lose his or her eligibility for

an annuity previously awarded;

(2) The erroneously credited months

of service do not exceed six months; and

(3) The annuitant is found not to be

at fault in causing the erroneous

crediting.

(c) An erroneous award of an annuity

where the error is no greater than one

dollar per month per annuity affected.

(d) An erroneous award of a lump

sum or accrued annuity payment where

the error is no greater than $25.00.

§ 261.5 Late completion of timely

investigation.

(a) A decision may be revised after the

applicable time period in § 261.2(a) or

§ 261.2(b) of this part expires if the

Railroad Retirement Board begins an

investigation into whether to revise the

decision before the applicable time

period expires and the agency diligently

pursues the investigation to the

conclusion. The investigation may be

based on a request by a claimant or on

action by the Railroad Retirement

Board.

(b) Diligently pursued for purposes of

this section means that in view of the

facts and circumstances of a particular

case, the necessary action was

undertaken and carried out as promptly

as the circumstances permitted. Diligent

pursuit will be presumed to have been

met if the investigation is concluded

and, if necessary, the decision is revised

within 6 months from the date the

investigation began.

(c) If the investigation is not diligently

pursued to its conclusion, the decision

will be revised if a revision is applicable

and if it is favorable to the claimant. It

will not be revised if it would be

unfavorable to the claimant.

§ 261.6 Notice of revised decision.

(a) When a decision is revised, notice

of the revision will be mailed to the

parties to the decision at their last

known address. The notice will state the

basis for the revised decision and the

effect of the revision. The notice will

also inform the parties of the right to

further review.

(b) If a hearings officer or the threemember Board proposes to revise a

decision, and the revision would be

based only on evidence included in the

record on which the prior decision was

based, all parties will be notified in

writing of the proposed action. If a

revised decision is issued by a hearings

officer, any party may request that it be

reviewed by the three-member Board, or

the three-member Board may review the

decision on its own initiative.

§ 261.7 Effect of revised decision.

A revised decision is binding unless:

(a) The revised decision is

reconsidered or appealed in accord with

part 260 of this chapter;

(b) The three-member Board reviews

the revised decision; or

(c) The revised decision is further

revised consistent with this part.

§ 261.8 Time and place to request review

of a revised decision.

A party to a revised decision may

request, as appropriate, further review

of the decision in accordance with the

rules set forth in part 260 of this

chapter.

§ 261.9 Finality of findings when later

claim is filed on same earnings record.

If two claims for benefits are filed on

the same record of compensation,

findings of fact made in a decision in

the first claim may be revised in

determining or deciding the second

claim, even though the time limit for

revising the findings made in the first

claim has passed. However, a finding in

connection with a claim that a person

was fully or currently insured at the

time of filing an application, at the time

of death, or any other pertinent time,

may be revised only under the

conditions stated in § 261.2 of this part.

§ 261.10 Increase in future benefits where

time period for reopening has expired.

If, after the time period for reopening

under § 261.2(b) of this part has expired,

new evidence is furnished showing a

different date of birth or new evidence

is furnished which would cause a

correction in a record of compensation

as provided for in part 211 of this

chapter and, as a result of the new

evidence, increased benefits would be

payable, the Board will pay increased

benefits, but only for the months

following the month the new evidence

is received.

§ 261.11 Discretion of the three-member

Board to reopen or not to reopen a final

decision.

In any case in which the threemember Board may deem proper, the

Board may direct that any decision,

which is otherwise subject to reopening

under this part, shall not be reopened or

direct that any decision, which is

otherwise not subject to reopening

under this part, shall be reopened.

Dated: August 21, 1997.

By Authority of the Board.

For the Board,

Beatrice Ezerski,

Secretary to the Board.

[FR Doc. 97–23080 Filed 8–28–97; 8:45 am]

BILLING CODE 7905–01–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 917

[KY–211–FOR]

Kentucky Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of

amendment.
Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations 45715

SUMMARY: OSM is approving a proposed

amendment to the Kentucky regulatory

program (hereinafter referred to as the

‘‘Kentucky program’’) under the Surface

Mining Control and Reclamation Act of

1977 (SMCRA). Kentucky proposed

revisions to the Kentucky Revised

Statutes (KRS) pertaining to reclamation

contracts, coal processing waste, and

penalty assessment. The amendment is

intended to revise the Kentucky

program to be consistent with the

Federal regulations and SMCRA.

EFFECTIVE DATE: August 29, 1997.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Director, Lexington

Field Office, 2675 Regency Road,

Lexington, Kentucky 40503. Telephone:

(606) 233–2896.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

II. Submission of the Proposed Amendment

III. Director’s Findings

IV. Summary and Disposition of Comments

V. Director’s Decision

VI. Procedural Determinations

I. Background on the Kentucky

Program

On May 18, 1982, the Secretary of the

Interior conditionally approved the

Kentucky program. Background

information on the Kentucky program,

including the Secretary’s findings, the

disposition of comments, and the

conditions of approval can be found in

the May 18, 1982 Federal Register (47

FR 21404). Subsequent actions

concerning conditions of approval and

program amendments can be found at

30 CFR 917.11, 917.13, 917.15, 917.16,

and 917.17.

II. Submission of the Proposed

Amendment

By letter dated August 15, 1996,

(Administrative Record No. KY–1371)

Kentucky submitted a proposed

amendment to its program pursuant to

SMCRA at its own initiative. Two bills

were enacted in the regular session of

the 1996 Kentucky General Assembly

that amend KRS Chapter 350. Senate

Bill (SB) 231 creates a new subsection

(3) of KRS 350.131 and amends

350.150(1). Both subsections pertain to

reclamation contracts. SB 231 also

creates a new section of KRS Chapter

350 to address backstowing of coal

processing waste. House Bill (HB) 764

amends KRS 350.0301(1) and

350.990(1). These subsections pertain to

cessation orders.

OSM announced receipt of the

proposed amendment in the September

4, 1996, Federal Register (61 FR 46577),

and in the same document opened the

public comment period and provided an

opportunity for a public hearing on the

adequacy of the proposed amendment.

The public comment period closed on

October 4, 1996.

During its review of the amendment,

OSM identified concerns relating to the

issuance of cessation orders and the

assessment of penalties. OSM notified

Kentucky of these concerns by letter

dated May 28, 1997 (Administrative

Record No. KY–1389). By letter dated

June 27, 1997 (Administrative Record

No. KY–1392), Kentucky responded to

OSM’s concerns by submitting

additional clarifying information.

Because the information was

explanatory in nature and did not

constitute any major revision to the

Kentucky program, OSM did not reopen

the comment period.

III. Director’s Findings

Set forth below, pursuant to SMCRA

and the Federal regulations at 30 CFR

732.15 and 732.17, are the Director’s

findings concerning the proposed

amendment.

A. KRS 350.131(3)—Reclamation

Contract

Kentucky proposes to add new

subsection (3) to allow the Natural

Resources and Environmental

Protection Cabinet (Cabinet) to negotiate

and enter into a contract with a permit

applicant to reclaim the disturbed area

of a permit area in exchange for all or

part of the forfeited bond funds if

requested by the applicant. This applies

to those situations where a bond is

forfeited and a person subsequently

applies for a permit overlapping all or

part of the disturbed area. If the

applicant proposes to overlap only a

part of the disturbed area, the Cabinet

may enter into a contract with the

applicant to reclaim the overlap if it has

retained a portion of the forfeited bond

that is sufficient to reclaim the part of

the disturbed area that is not

overlapped. The applicant is not eligible

if he/she has any ownership or control

connection with the permittee. The

Cabinet will determine the amount of

forfeited bond fund to pay the applicant

based upon the estimated cost to

reclaim the overlap but the amount

cannot exceed the forfeited bond

amount collected. If the applicant

obtains a permanent program permit

overlapping a forfeited interim permit,

any disturbances created in connection

with the overlapping permit on areas

that were disturbed under the forfeited

permit may be covered under a contract

and shall be reclaimed to permanent

program standards. Areas where coal is

not removed under the overlapping

permit and the disturbances are for

reclamation of the interim permit shall

be reclaimed to interim program

standards. If the applicant obtains a

permanent program permit overlapping

a forfeited interim permit, any new

disturbances shall not be covered by a

contract and shall be reclaimed to

permanent program standards. No

person is exempt from the permitting,

bonding, and reclamation requirements

of Chapter 350 and the surety retains the

right to reclaim any permit or increment

thereof to avoid bond forfeiture.

While there is no Federal counterpart

to the Kentucky proposal, the Director

finds the proposed statute at KRS

350.131(3) not inconsistent with

SMCRA and the Federal regulations.

B. KRS 350.150(1)—Award of Contract

Kentucky proposes to revise

subsection (1) to exempt contracts

negotiated under KRS 350.131(3) from

the requirement that reclamation

contracts be awarded to the lowest

responsible bidder upon competitive

bids after reasonable advertisement.

While there is no Federal counterpart

to the Kentucky proposal, the Director

finds the proposed statute at KRS

350.150(1) not inconsistent with

SMCRA and the Federal regulations.

C. KRS Chapter 350 Section 3—

Backstowing

Kentucky proposes to add a new

section (3) in which the General

Assembly affirms the authorization of

backstowing of coal processing and coal

underground development waste as a

disposal method under appropriate

conditions. The General Assembly

directs the Cabinet to negotiate

improved coordination of State and

Federal agencies in the review of

backstowing or reinjection of coal

processing waste consistent with State

and Federal laws.

The Director finds the proposed

statute at KRS Chapter 350, Section 3,

not inconsistent with SMCRA and the

Federal regulations at 30 CFR 817.81(f).

D. KRS 350.0301(1)—Administrative

Hearings

Kentucky proposes to revise

subsection (1) to permit a petitioner to

contest the validity of an underlying

notice of noncompliance in a timely

filed demand for hearing to contest the

validity of a cessation order issued for

failure to abate the violation contained

in the notice of noncompliance.

While there is no Federal counterpart

to the Kentucky proposal, the Director

finds the proposed statute at KRS

350.0301(1) not inconsistent with

SMCRA and the Federal regulations.
45716 Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations

E. KRS 350.990(1)—Civil Penalty

Assessments

Kentucky proposes to revise

subsection (1) to require that a civil

penalty of not more than $5000 be

assessed for each violation in a

noncompliance underlying an imminent

danger cessation order. No separate civil

penalty shall be assessed for the order.

The Director finds that the proposed

statute at 350.990(1) is no less stringent

than section 518(a) of SMCRA and

consistent with the Federal penalty

assessment provisions at 30 CFR 845.14

and 845.15.

IV. Summary and Disposition of

Comments

Public Comments

The Director solicited public

comments and provided an opportunity

for a public hearing on the proposed

amendment submitted on August 15,

1996. Because no one requested an

opportunity to speak at a public hearing,

no hearing was held.

One public comment was received.

The commenter generally supported the

provisions of Senate Bill 231. However,

the provisions of House Bill 764 are

inconsistent with SMCRA and the

Federal regulations according to the

commenter. The change to KRS

350.0301(1) which permits a petitioner

to contest the validity of an underlying

notice of noncompliance in a timely

filed demand for hearing may, in the

commenter’s opinion, encourage an

operator to delay compliance. The

commenter also expressed concern that

the fact of the underlying violation

could be raised for the first time in a

hearing on a cessation order even when

the time for appealing the underlying

notice of violation had lapsed without

an appeal. The Director notes that in

Harman Mining Corp. v. Office of

Surface Mining Reclamation and

Enforcement, 114 IBLA 291,300 (May

10, 1990), the Interior Board of Land

Appeals held that the fact of a violation

set out in a notice of violation may be

contested in a proceeding to review a

cessation order issued for failure to

abate the notice of violation, as well as

in civil penalty proceedings.

The change to KRS 350.990(1) which

requires that a civil penalty of not more

that $5000 be assessed for each violation

in a noncompliance underlying an

imminent danger cessation order has

three distinct problems according to the

commenter. The first is that the

provision appears to prevent the

imposition of a separate civil penalty for

the issuance of an imminent danger

cessation order. The second is that the

provision appears to cap the amount of

penalty for underlying violations at

$5000 per violation but does not allow

for imposition of penalties on a daily

basis. The third is that there are

instances in which an imminent harm

cessation order is issued in which there

is no underlying notice of

noncompliance or violation issued in

conjunction with the cessation order.

The commenter contends that, in those

cases, no civil penalty would result

according to the revised statute. In

response to the commenter’s first two

concerns, the Director notes that

Kentucky stated in its June 27, 1997,

letter that KRS 350,990(1) provides for

the assessment of a civil penalty of up

to $5,000 for each violation cited in the

underlying notice of noncompliance

underlying the cessation order. The

statute further provides that each day of

a continuing violation may be deemed

a separate violation for purposes of

penalty assessment. Kentucky may

assess a ‘‘per violation/per day’’ penalty

whenever an imminent danger cessation

order is issued. The mandatory 2-day

assessment for a violation which

continues for two or more days and

which is assigned more than 70 points

is not affected by the amendment as

provided by 405 KAR 7:095, Section 5.

KRS 350.990(1) requires that a civil

penalty of not less than $750 be

assessed for each day during which a

violation is not abated within the time

period prescribed in the failure to abate

cessation order or notice of

noncompliance. Kentucky does not

interpret the language at KRS 350.990(1)

to prohibit the imposition of a separate

civil penalty for each day during which

the violation continues. In response to

the commenter’s third concern, the

Director notes that Kentucky affirmed in

its June 27, 1997, letter that it always

issues an underlying notice of

noncompliance and order for remedial

measures along with the related

imminent danger cessation order (see

405 KAR 12:020, section 3(2)(b)). KRS

350.990(1), as amended by HB 764,

links the penalty assessment for the

cessation order to the underlying notice

of noncompliance. KRS 350.130(1) and

405 KAR 12:020, Section 2, require that

a notice of noncompliance be issued for

any violation of the statutes, regulations,

permit conditions, or any other

applicable requirement. For these

reasons, the Director finds the

provisions of HB 764 to be no less

stringent than SMCRA and consistent

with the Federal regulations.

Federal Agency Comments

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

the Director solicited comments on the

proposed amendment submitted on

August 15, 1996, and revised on January

11, 1995, from various Federal agencies

with an actual or potential interest in

the Kentucky program. No comments

were received.

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.).

None of the revisions that Kentucky

proposed to make in its amendment

pertains to air or water quality

standards. Therefore, OSM did not

request EPA’s concurrence.

V. Director’s Decision

Based on the above findings, the

Director approves the proposed

amendment as submitted by Kentucky

on August 15, 1996.

The Federal regulations at 30 CFR

part 917, codifying decisions concerning

the Kentucky program, are being

amended to implement this decision.

This final rule is being made effective

immediately to expedite the State

program amendment process and to

encourage States to bring their programs

into conformity with the Federal

standards without undue delay.

Consistency of State and Federal

standards is required by SMCRA.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by

the Office of Management and Budget

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

Executive Order 12988

The Department of the Interior has

conducted the reviews required by

section 2 of Executive Order 12988

(Civil Justice Reform) and has

determined that, to the extent allowed

by law, 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 since each such

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 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
Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations 45717

its implementing Federal regulations

and whether the other requirements of

30 CFR parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is

required for this rule since 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 has

determined 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 corresponding 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.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. 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

corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface

mining, Underground mining.

Dated: July 30, 1997.

Allen D. Klein,

Regional Director, Appalachian Regional

Coordinating Center.

For the reasons set out in the

preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal

Regulations 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 ‘‘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

* * * * * *

August 15, 1996 ..................................... August 29, 1997 ........ KRS 350.131(3), 350.150(1), Chapter 350 Section 3, KRS 350.0301(1),

350.990(1).

[FR Doc. 97–23106 Filed 8–28–97; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 100

[CGD 05–97–065]

RIN 2115–AE46

Special Local Regulations for Marine

Events; Hampton Offshore Challenge,

Chesapeake Bay, Hampton, Virginia

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

SUMMARY: Special local regulations are

being adopted for the Hampton Offshore

Challenge boat race to be held in the

Chesapeake Bay, Hampton, Virginia.

These special local regulations are

necessary to control vessel traffic in the

immediate vicinity of this event. The

effect will be to restrict general

navigation in the regulated area for the

safety of spectators and participants.

EFFECTIVE DATES: This regulation is

effective from 10:30 a.m. to 6 p.m. EDT

(Eastern Daylight Time) on September 6

and September 7, 1997.

FOR FURTHER INFORMATION CONTACT:

Chief Warrant Officer D. Merrill, Marine

Events Coordinator, Commander, Coast

Guard Group Hampton Roads, 4000

Coast Guard Blvd., Portsmouth, Virginia

23703, (757) 483–8568.

SUPPLEMENTARY INFORMATION: In

accordance with 5 U.S.C. 553, a notice

of proposed rulemaking was not

published for this regulation and good

cause exists for making it effective in

less than 30 days from the date of

publication. Following normal

rulemaking procedures would have

been impractical. The request to hold

the event was not received until July 30,

1997. Publishing a notice of proposed

rulemaking and delaying its effective

date would be contrary to safety

interests, since immediate action is

needed to minimize potential danger to

the public posed by the large number of

racing vessels participating in this

event.

Discussion of Regulations

On September 6 and September 7,

1997, the United States Offshore Racing

Association will sponsor the Hampton

Offshore Challenge race in the

Chesapeake Bay near Buckroe Beach,

Hampton, Virginia. The event will

consist of Offshore Performance Boats

racing at high speeds along an 8 mile

oval course. These regulations are

necessary to control spectator craft and

provide for the safety of life and

property on navigable waters during the

event.

Regulatory Evaluation

This rule is not a significant

regulatory action under section 3(f) of

Executive Order 12866 and does not

require an assessment of potential costs

and benefits under section 6(a)(3) of that

order. It has been exempted from review

by the Office of Management and

Budget under that order. It is not

significant under the regulatory policies

and procedures of the Department of

Transportation (DOT) (44 FR 11040;

February 26, 1979). The Coast Guard

expects the economic impact of this

proposal to be so minimal that a full

Regulatory Evaluation under paragraph

10e of the regulatory procedures of DOT

is unnecessary. Entry into the regulated

area will only be prohibited while the

race boats are actually competing.

Because vessels will be allowed to

transit the event area between heats, the