33020 Federal Register / Vol. 66, No. 119 / Wednesday, June 20, 2001 / Rules and Regulations

§ 39.13 [Amended]

2. Section 39.13 is amended by

removing Amendment 39–12100 (66 FR

9031, February 6, 2001).

AD 2001–01–52 R1 Bell Helicopter Textron

Canada: Amendment 39–12272. Docket

No. 2001–SW–02–AD. Rescinds AD

2001–01–52, Amendment 39–12100.

Applicability: Model 407 helicopters,

certificated in any category.

Issued in Fort Worth, Texas, on June 8,

2001.

Eric Bries,

Acting Manager, Rotorcraft Directorate,

Aircraft Certification Service.

[FR Doc. 01–15445 Filed 6–19–01; 8:45 am]

BILLING CODE 4910–13–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 917

[KY–230–FOR]

Kentucky Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule.

SUMMARY: OSM is approving, with

exceptions, an amendment to the

Kentucky regulatory program (Kentucky

program) under the Surface Mining

Control and Reclamation Act of 1977

(SMCRA). Kentucky is proposing

revisions to the Kentucky Revised

Statutes (KRS) pertaining to ownership

and control, easement of necessity for

the limited purpose of abatement of

violations, and roads above highwalls.

This rule addresses only the easement of

necessity provision. The remaining

provisions will be addressed in a future

rulemaking (KY–225–FOR).

EFFECTIVE DATE: June 20, 2001.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Field Office

Director, Lexington Field Office, 2675

Regency Road, Lexington, Kentucky

40503. Telephone: (859) 260–8400.

Email: bkovacic@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky Program

II. Submission of the 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. You can find

background information on the

Kentucky program, including the

Secretary’s findings, the disposition of

comments, and the conditions of

approval in the May 18, 1982 Federal

Register (47 FR 21404). Subsequent

actions concerning the Kentucky

program and previous amendments are

codified 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 9, 2000

(Administrative Record No. KY–1473),

Kentucky submitted a proposed

amendment to its approved permanent

regulatory program. House Bill (HB) 502

continues in effect the current

administrative regulations on ownership

and control. HB 599 creates a new

section of KRS Chapter 350. HB 792

amends KRS 350.445(3). Only the

provisions of HB 599 will be addressed

in this rule.

We announced receipt of the

proposed amendment in the May 31,

2000, Federal Register (65 FR 34625),

invited public comment, and provided

an opportunity for a public hearing on

the adequacy of the proposed

amendment. The public comment

period closed on June 30, 2000.

III. Director’s Findings

Following, according to SMCRA and

the Federal regulations at 30 CFR 732.15

and 732.17, are our findings concerning

the proposed amendment. Any revisions

that we do not specifically discuss

below concern nonsubstantive wording

changes or revised cross-references and

paragraph notations to reflect

organizational changes that result from

this amendment.

House Bill 599. Subsection (1)

recognizes an easement of necessity on

behalf of the permittee or operator for

the limited purpose of abating a

violation, with certain conditions. The

permittee or operator must have been

issued a notice or order directing

abatement of the violation on the basis

of an imminent danger to health and

safety of the public or significant

imminent environmental harm. The

notice or order must require access to

property for which the permittee or

operator does not have legal right of

entry and the landowner or legal

occupant has refused access.

Subsection (2) establishes conditions

under which the Cabinet terminates a

notice of noncompliance or cessation

order for a violation, other than a

violation described in Subsection (1), if

the party responsible for abatement of

the violation has been denied access to

the land necessary to allow abatement.

Those conditions, in general terms, are:

(a) Prior to terminating a notice of

noncompliance or cessation order, and

within 30 days of a request by a

permittee to terminate a violation based

on lack of success, the Cabinet shall

verify the denial of access and advise

the surface owners and legal occupants

of the consequences of refusing to allow

access to the property; and (b) the

Cabinet shall explain the consequences

by certified mail and shall make a good

faith effort to notify all owners of

interest and legal occupants of the

consequences of the refusal to allow

access.

Subsection (3) prohibits the Cabinet

from terminating a notice or order if it

determines that the denial of the access

has been procured through collusion

between the permittee and the

landowner who is refusing access. It

defines ‘‘collusion’’ and provides that

any act of collusion will subject the

permittee to certain penalties.

Subsection (4) prohibits termination

of a notice or order under this section

if there is any common ownership and

control between the permittee or

operator and the landowner or legal

occupant. It also prohibits termination

where there is any other legal

relationship between the permittee or

operator and the landowner or legal

occupant, except where a court has

determined that the legal relationship

does not provide for a right of access.

Subsection (5) requires the Cabinet to

direct abatement measures to be taken

by the permittee to prevent damage to

lands for which access has not been

denied.

Subsection (6) provides that

termination of a notice or order under

this Section shall not affect the

assessment of a civil penalty for the

violation, and provides that nothing in

this Section affects a person’s right for

damages or injunctive relief.

The Federal regulations at 30 CFR

843.11(f) and 843.12(e) specify,

respectively, that the exclusive grounds

for termination of cessation orders and

notices of violation are the abatement of

all conditions, practices, or violations

listed in the order or notice. A permittee

is responsible for the reclamation of its

surface coal mining operation, including

abatement of all violations, regardless of

impediments that may be raised by

recalcitrant surface owners. See Elk

Valley Mining Company v. OSM, Case

No. NX6–65–R (March 31, 1988) (‘‘It

would be contrary to the purposes of the

Act for the Applicant to be able to

shield itself from enforcement of the Act

by his failure to reach a lease agreement

with a private party.’’) See, also, Wilson

Federal Register / Vol. 66, No. 119 / Wednesday, June 20, 2001 / Rules and Regulations 33021

Farms Coal Co., 2 IBSMA 118 (1980) (A

lease agreement does not relieve

permittee of its responsibility for

reclamation under the Act.) Because HB

599 allows termination of enforcement

action due to denial of access to land,

subsections (2) through (6) are

inconsistent with these Federal

regulations, and are not approved.

We will also announce our intention

to set aside subsections (2) through (6)

in a subsequent Federal Register notice.

As an alternative to this proposal,

Kentucky may consider enactment of

legislation prohibiting surface owner

interference with the performance of all

reclamation obligations, rather than

limiting the availability of such

‘‘easements of necessity’’ to only those

violations that may result in imminent

danger to the public or to the

environment. As one commenter has

pointed out, both West Virginia and

Virginia have enacted this type of

legislation. See W.Va. Code 22–3–11(e);

Va. Code 45.1–188.

Subsection (1) is, however, no less

stringent than section 521 of SMCRA

and consistent with 30 CFR 843.11,

because it provides a method for

ensuring the abatement of an imminent

danger that is in addition to the

methods provided for in those

provisions. Therefore, subsection (1) is

approved in accordance with section

505(b) of SMCRA. Subsections (2)

through (6) are not approved.

IV. Summary and Disposition of

Comments

Federal Agency Comments

On February 18, 2000, we asked for

comments from various Federal

agencies who may have an interest in

the Kentucky amendment

(Administrative Record No. KY–1469)

according to 30 CFR 732.17(h)(11)(i) and

section 503(b) of SMCRA. No one

responded.

Public Comments

We received several public comments

in response to our request. We will

address only the comments that pertain

to HB 599. Two commenters believe that

the provisions of HB 599 are consistent

with SMCRA and should be approved.

Both parties refer to McCoy Elkhorn

Coal Corporation v. Greene et al, No.

96–CA–2644–MR (unpublished opinion,

March 6, 1998). The Kentucky Court of

Appeals held that a coal mine operator

had no implied right incident to

ownership and control of coal to enter

on the surface to effect subsidence

repairs. One of the commenters deemed

this a ‘‘rejection by the state courts of

the coal industry’s attempt to gain legal

access to conduct reclamation

activities.’’ The commenters note that

HB 599, in essence, overrides the

McCoy Elkhorn opinion and provides

coal operators legal access (easement of

necessity) to conduct reclamation

activities where there is an imminent

danger. They also assert that Virginia

and West Virginia allow the permittee to

access property to fulfill reclamation

obligations.

Both commenters refer to OSM’s

regulation at 30 CFR 843.18, which

states that the inability of a permittee to

comply is not a basis to vacate a

violation. They note, however, that in

the preamble to this rule, OSM states

that where the damage cannot be

undone and when no further remedial

action or affirmative obligation can be

prescribed, ‘‘the citation must be

terminated.’’ (44 FR 14901, 15305,

March 13, 1979) The commenters

interpret the provisions of HB 599 to be

consistent with OSM’s preamble

language.

We disagree with the commenters’

interpretation of our statements from the

1979 preamble, because it overstates the

reach of that discussion. The comments

to proposed 30 CFR 843.18 were

concerned about the consequences to

operators whose violations could not be

abated, due to a ‘‘technological ‘inability

to comply’,’’ and believed that such

violations should be vacated. We

declined to make the suggested change,

however, because we believed that there

were no performance standards that

were ‘‘technologically impossible to

meet.’’ Id. (Emphasis added) In other

words, we declined to allow a violation

to be vacated, because we believed that

it was technologically possible to have

prevented its occurrence. However, we

did acknowledge that there may be

instances ‘‘when an operator violates

the Act or the regulations, [and] it may

be technologically impossible to undo

the damage.’’ In such instances,

termination, rather than vacation, of the

violation would be appropriate. Id

(Emphasis added)

H.B. 599 would allow termination

under much different circumstances. A

landowner’s refusal to grant access to

his property does not present a

technological impossibility to

performing reclamation. In Elk Valley

Mining Company v. OSM, Docket No.

NX6–65–R (1988), the Administrative

Law Judge refused to accept the failure

to reach a lease agreement to ensure

entry for reclamation purposes as

justification for failure to abate an

otherwise valid notice of violation,

stating that ‘‘It would be contrary to the

purposes of the Act for the Applicant to

be able to shield itself from enforcement

of the Act by his failure to reach a lease

agreement with a private party.’’ (citing

Wilson Farms Coal Co., 2 IBSMA 118

(1980) (A lease agreement does not

relieve permittee of its responsibility for

reclamation under the Act.) From these

principles, it follows that the

inadequacy of a right of entry provision,

whether included in a lease, deed, or

some other instrument, does not relieve

a permittee from the absolute

responsibility to abate all violations.

One commenter also noted that OSM

has approved language in the West

Virginia state program which provides,

with respect to notices of violation, that

‘‘[i]f the operator has not abated the

violation within the time specified in

the notice, * * * the director shall

order the cessation of the operation

* * *, unless the operator affirmatively

demonstrates that compliance is

unattainable due to conditions totally

beyond the control of the operator.’’

W.Va. Code 22–3–17(a) (Emphasis

added) This language, according to the

commenter, stands for the principle that

NOVs issued for violations which

cannot be abated should be terminated.

We disagree with the commenter,

because the West Virginia provision

merely provides an exception to the

requirement to issue a Cessation Order

if a violation is not abated within a

specified period. It does not authorize

termination of the violation, even where

‘‘compliance is unattainable due to

conditions totally beyond the control of

the operator.’’ As such, the West

Virginia provision differs markedly from

the proposed amendment that is the

subject of this rulemaking. A third

commenter, who helped draft the bill,

feels that certain aspects of the bill need

to be clarified by Kentucky. They are:

(1) The process the State will employ to

determine whether a request for

termination of a violation based on

refusal of access is not collusive, and for

investigating ownership, control, and

other legal relationship links between

the applicant and the landowner

refusing access; (2) the type of training

that will be conducted to assure that

field inspectors are aware of their

responsibility to inform the landowner

of their rights and consequences of

refusal-of-access on the status of the

violation; and (3) the constitutionality

under state law of the state proposal,

which creates a new easement

burdening the lands of a party who, by

definition, has been trespassed upon by

a violation of the mining laws, or

whether the state is in a position of

sanctioning a ‘‘taking’’ of the property of

a third party.

We note that we are disapproving the

portions of the amendment to which the

33022 Federal Register / Vol. 66, No. 119 / Wednesday, June 20, 2001 / Rules and Regulations

first of these two comments pertain. The

third comment addresses the

amendment’s constitutionality under

state law. A determination of this type

is also outside the scope of this

rulemaking. However, we acknowledge

the commenter’s concerns and will

forward them to Kentucky’s Department

for Surface Mining Reclamation and

Enforcement for consideration.

Environmental Protection Agency (EPA)

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

OSM is required to solicit comments

and 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.). Since none of

the proposed amendment provisions

relate to air or water quality, we did not

solicit EPA’s concurrence.

V. Director’s Decision

Based on the above findings, we

approve, with the following exceptions,

the proposed amendment, known as

House Bill 599, submitted by Kentucky

on May 9, 2000: Subsection (1) is

approved; Subsections (2) through (6)

are not approved. 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.

Effect of the Director’s Decision

Section 503 of SMCRA provides that

a State may not exercise jurisdiction

under SMCRA unless the State program

is approved by the Secretary. Similarly,

30 CFR 732.17(a) requires that any

alteration of an approved State program

be submitted to OSM for review as a

program amendment. Thus, any changes

to the State program are not enforceable

until approved by OSM. The Federal

regulations at 30 CFR 732.17(g) prohibit

any unilateral changes to approved State

programs. In the oversight of the

Kentucky program, we will recognize

only the statutes, regulations, and other

materials approved by OSM, together

with any consistent implementing

policies, directives, and other materials.

We will require that Kentucky enforce

only such provisions.

VI. Procedural Determinations

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 12630—Takings

This rule does not have takings

implications. This determination is

based on the analysis performed for the

counterpart federal regulation.

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 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, 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 its implementing

federal regulations and whether the

other requirements of 30 CFR Parts 730,

731, and 732 have been met.

National Environmental Policy Act

Section 702(d) of SMCRA (30 U.S.C.

1292(d)) provides that a decision on a

proposed state regulatory program

provision does not constitute a major

federal action within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (NEPA) (42

U.S.C. 4332(2)(C)). A determination has

been made that such decisions are

categorically excluded from the NEPA

process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by the Office of

Management and Budget 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 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.

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

counterpart federal regulation.

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.

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 a cost of

$100 million or more in any given year

Federal Register / Vol. 66, No. 119 / Wednesday, June 20, 2001 / Rules and Regulations 33023

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 25, 2001.

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 917.12 is amended by

adding paragraph (b) to read as follows:

§ 917.12 State regulatory program and

proposed program amendment provisions

not approved.

* * * * *

(b) Subsections (2) through (6) of the

amendment submitted as House Bill 599

on May 9, 2000, are hereby not

approved, effective June 20, 2001.

3. Section 917.15 is amended in the

table in paragraph (a) 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.

(a) * * *

Original amendment submission date

Date of

final

publication

Citation/description

*******

May 9, 2000 ........................................................................................................................... 6/20/01 House Bill 599, subsection (1).

* * * * *

[FR Doc. 01–15498 Filed 6–19–01; 8:45 am]

BILLING CODE 4310–05–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 100

[CGD07–01–049]

RIN 2115–AE46

Special Local Regulations: San Juan

Harbor, Puerto Rico

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

SUMMARY: Temporary Special Local

Regulations are being established for the

Swimming Cross San Juan Harbor, San

Juan, Puerto Rico. These regulations are

needed to provide for the safety of life

on navigable waters by excluding

vessels from the swimming area.

DATES: This rule is effective from 10

a.m. to noon on July 22, 2001.

ADDRESSES: Comments and material

received from the public, as well as

documents indicated in this preamble as

being available in the docket are part of

[CGD07–01–049] and are available for

inspection or copying at Coast Guard

Greater Antilles Section, La Puntilla,

Old San Juan, PR 00902 between 7 a.m.

and 3:30 p.m., Monday through Friday,

except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr.

John Reyes, Greater Antilles Section at

(787) 729–5381.

SUPPLEMENTARY INFORMATION:

Regulatory Information

We did not publish a notice of

proposed rulemaking (NPRM) for these

regulations. Under 5 U.S.C. 553(b)(B),

the Coast Guard finds that good cause

exists for not publishing an NPRM.

Publishing an NPRM would be contrary

to national safety interests since

immediate action is needed to minimize

potential danger to the public.

Background and Purpose

These regulations are required to

provide for the safety of life on

navigable waters because numerous

swimmers will cross a navigable

channel in a commercial port. This

event has taken place several times over

the past years, although the date

changes from year to year. This rule

creates a regulated area that will

prohibit vessels from entering an area

between the Puerto Rico Ports Authority

Pier 1 to La Puntilla Point, then across

the Anagada Channel to the Catano

Ferry Terminal, then to Punta Catano,

and then across the San Antonio

Approach to the origin.

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. The Office of Management and

Budget has not reviewed it under that

order. It is not ‘‘significant’’ under the

regulatory policies and procedures of

the Department of Transportation (44 FR

11040, February 26, 1979). The

regulated area will only be in effect for

approximately 2 hours.

Small Entities

Under the Regulatory Flexibility Act

(5 U.S.C. 601–612), we considered

whether this rule would have a

significant economic effect upon a

substantial number of small entities.

‘‘Small entities’’ include small business,

not-for-profit organizations that are

independently owned and operated and

are not dominant in their fields, and

governmental jurisdictions with

populations of less than 50,000.

This rule will affect the following

entities, some of which may be small

entities: the owners or operators of

vessels intending to transit or anchor in

a portion of San Juan Harbor, Puerto

Rico from 10 a.m., to noon, July 22,

2001. The Coast Guard certifies under 5

U.S.C. 605(b) that this rule will not have

a significant economic impact on a

substantial number of small entities

because the rule will only be in effect

for 2 hours.

Assistance for Small Entities

Under section 213(a) of the Small

Business Regulatory Enforcement

Fairness Act of 1996 (Pubic Law 104–

221), we offer to assist small entities in

understanding the rule so that they

could better evaluate its effects on them

and participate in the rulemaking

process. Small entities may contact the

person listed under FOR FURTHER

INFORMATION CONTACT for assistance in

understanding and participating in this

rulemaking. We also have a point of

contact for commenting on actions by

employees of the Coast Guard. Small

businesses may send comments on the

actions of Federal employees who

enforce, or otherwise determine

compliance with Federal regulations to