After reviewing the proposed regulations, KRC offers these comments, referenced by proposed regulation, section and subsection number:
I. 402 KAR 3:020 Master Logger Program
KRC supports inclusion of additional emphasis on compliance with laws and regulations as part of the Master Logger Program Training Course, but believes that in order to assure that the Master Logger is trained in basic first aid and CPR, that either an additional day of training during which such skills are taught, or a continuing education requirement for maintenance of the certificate at which such skills are taught should be required. Section 6 could be amended to include basic first aid skills as part of the CE requirements.
The notification that is required by Section 9 should include not merely the location of the operation that is using a temporary master logger, but also the dates on which the proposed harvesting operation will commence.
Additionally, Section 9(4) should clarify that not only will a logger or operator who has started without a master logger or temporary master logger on site not be eligible for the designation, but that s/he is subject to enforcement action for violation of the requirements of the statute.
Finally, there is no provision in the proposed regulation that establishes any educational or informational obligation or any qualifications for eligibility for temporary master logger status.
The Cabinet should require a demonstration of basic competence and familiarity, which can be done through issuance of a manual and administration of a web-based test or one administered at the regional offices testing for basic knowledge of the Forestry BMP manual, so that there is some degree of confidence that during the four months before the formal Master Logger Training will be given, that the person in charge has at lease a rudimentary understanding of their responsibility concerning protection both of the workers on the workplace and the environment (and landowner’s property). Alternatively, the temporary master logger could be required to apprentice on a harvest operation under a full Master Logger certificate holder prior to receiving the certificate.
It was KRC’s clear understanding during the development of the statutory amendments that authorized the “temporary master logger” that the regulations developed by the agency would impose some interim obligations to assure the possession of basic familiarity and competence; yet the proposed rule requires only that the applicant be alive and kicking and possessed of $50, and that s/he register for the training program.
The statute provides that “[t]he cabinet shall specify requirements for a temporary master logger designation[ ]” and does not state merely that the Cabinet shall set the fee for issuance of a certificate.
It is neither fair to the temporary master logger certificate holder, who assumes legal responsibility and potential liability under law for the success of the timber operation yet may lack the basic knowledge to assume that role, nor to the other employees under his or her charge nor the landowner who expects that the state certification bespeaks a basic competence, if a certificate holder can assume responsibility to be “in charge of timber harvesting operations” without the first demonstration of even rudimentary competence or experience, merely by paying fifty dollars and registering for the training.
KRC urges the agency to adopt, as the statute intended, interim measures to allow timely demonstration of familiarity and basic competence during that interim period of up to four (4) months, prior to allowing a temporary master logger to assume sole responsibility for a harvesting operation under the statute.
402 KAR 3:040 Removal of Bad Actor Designation
The legislature has provided the Cabinet with wide latitude in determining whether to adopt regulations allowing a person designated as a “bad actor” for flagrant failure to comply with the generous compliance obligations of the statute, and in setting the standards by which such a designation may be removed.
In reviewing the proposed rule, KRC notes the absence of two key provisions: first, notice to and an opportunity to participate in the process for the property owner(s) affected by the violations that caused a bad actor to receive the designation initially; and second, assurance that the bad actor has satisfied not merely the fines and corrective action obligations of the agency, but has satisfied any outstanding court judgments relating to any damage caused by the violations of the agency regulations and the statute.
As to the first point, the violation of statutory obligations often results in unnecessary damage to private or public lands from such noncompliance. The landowner(s) affected have a stake and should have a voice in the decision by the agency to enable an individual who has demonstrated such disregard of the Cabinet’s enforcement orders as to trigger the “bad actor” designation, to again participate in a timber harvest operation on another’s property as a master logger.
Concerning the second point, before the agency allows an individual who by definition has shown flagrant disregard for compliance, to supervise new harvest operations, that individual should have to fully account to both the agency and to those harmed by satisfying any outstanding corrective measures, any fines, and any final court judgments relating to the damage caused and arising out of the noncompliance. The agency is the gatekeeper of whether the individual should be allowed to again assume the role of Master Logger, and should not grant that opportunity absent a full accounting by the individual for past costs imposed on the public at large and on the specific landowners.
Thank you for the opportunity to submit these comments.