Prohibitions of 522(e)

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 761

RIN 1029-AB82

Prohibitions of 522(e)

AGENCY: Office of Surface Mining Reclamation and Enforcement,

Department of the Interior.

ACTION: Proposed interpretative rule.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

of the U.S. Department of the Interior (DOI) is proposing an

interpretative rulemaking to address the question of whether subsidence

due to underground mining is a surface coal mining operation and thus

prohibited in areas enumerated in section 522(e) of the Surface Mining

Control and Reclamation Act of 1977 (SMCRA). OSM proposes to interpret

SMCRA and implementing rules to provide that subsidence due to

underground mining is not a surface coal mining operation, and

therefore is not prohibited in areas protected under SMCRA section

522(e). OSM proposes to construe the definition of ``surface coal

mining operations'' at SMCRA section 701(28)(A) and in the analogous

portion of the existing rules at 30 CFR 700.5 not include subsidence,

and to include only (1) surface activities in connection with a surface

coal mine and (2) surface activities in connection with those surface

operations and impacts of an underground coal mine subject to section

516. Similarly, OSM would construe the second part of this definition,

at SMCRA section 701(28)(B) and in the analogous portion of the

existing rules at 30 CFR 700.5, to include only the areas upon which

such surface activities occur, and the areas where such surface

activities disturb the surface and to holes or depressions resulting

from or incident to such surface activities. Only ``surface coal mining

opearation'' are prohibited within the areas protected by section

522(e). Therefore, neither subsurface activities that may result in

subsidence, nor actual subsidence, would be prohibited on lands

protected by section 522(e). Rather, such underground activities and

their impacts, including subsidence, would be subject to regulation

under sections 516 and 720.

DATES: Electronic or written comments: OSM will accept electronic or

written comments on the proposed rule until 5:00 p.m. Eastern time on

June 2, 1997.

Public hearings: Anyone wishing to testify at a public hearing must

submit a request on or before 5:00 p.m. Eastern time on March 17, 1997.

Because OSM will hold a public hearing at a particular location only if

there is sufficient interest, hearing arrangements, dates and times, if

any, will be announced in a subsequent Federal Register notice. Any

disabled individual who needs special accommodation to attend a public

hearing should contact the person listed under FOR FURTHER INFORMATION

CONTACT.

ADDRESSES: Electronic or written comments: Submit electronic comments

to [email protected]. Mail written comments to the Administrative

Record, Office of Surface Mining Reclamation and Enforcement, 1951

Constitution Avenue, N.W., Washington, DC 20240 or hand-deliver to the

person listed under FOR FURTHER INFORMATION CONTACT.

Public hearings: If there is sufficient interest, hearings may be

held in Billings, MT; Denver, CO; Lexington, KY; Washington, DC; and

Washington, PA. To request a hearing, contact the person listed under

FOR FURTHER INFORMATION CONTACT by the time specified under DATES using

any of the methods listed for ``Electronic or written comments''.

FOR FURTHER INFORMATION CONTACT:

Nancy R. Broderick, Rules and Legislation, Office of Surface Mining

Reclamation and Enforcement, Room 115, South Interior Building, 1951

Constitution Avenue, N.W., Washington, DC 20240. Telephone: (202) 208-

2700.

E-mail address: [email protected]. Additional information

concerning OSM, this rule, and related documents may be found on OSM's

home page at http://www.osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

II. Discussion of Proposed Rule

A. Background

B. Statutory Analysis

III. Procedural Matters

I. Public Comment Procedures

Electronic or Written Comments

Comments should be specific and confined to issues pertinent to the

proposed rule. They also should include explanations in support of the

commenter's recommendations. OSM appreciates any and all comments, but

those most useful and likely to influence decisions on the content of a

final rule will be those that either involve personal experience or

include citations to and analyses of the Act, its legislative history,

its implementing regulations, case law, other pertinent State or

Federal laws or regulations, technical literature, or other relevant

publications.

Except for comments provided in an electronic format, commenters

should submit two copies of their comments whenever practicable.

Comments received after the time indicated under DATES or at locations

other than the OSM office listed under ADDRESSES will not necessarily

be considered in the final decision or included in the administrative

record.

Public Hearing

Persons wishing to testify at a public hearing must contact the

person listed under FOR FURTHER INFORMATION CONTACT by the time

indicated under DATES. If no one requests an opportunity to comment at

a public hearing, no hearing will be held.

If a public hearing is held, it will continue until all persons

scheduled to speak have been heard. Persons in the audience who were

not scheduled to speak but who wish to do so will be heard following

the scheduled speakers. The hearing will end after all scheduled

speakers and any other persons present who wish to speak have been

heard.

Filing of a written statement at the time of the hearing will

assist the transcriber and facilitate preparation of an accurate

record. Submission of electronic or written statements to OSM in

advance of the hearing will allow OSM officials to prepare appropriate

questions.

Public Meeting

If there is only limited interest in a hearing at a particular

location, a public meeting, rather than a public hearing, may be held.

Persons wishing to meet with OSM representatives to discuss the

proposed rule may request a meeting by contacting the person listed

under FOR FURTHER INFORMATION CONTACT. All meetings will be open to the

public and, if possible, notice of the meetings will be posted at the

appropriate locations listed under ADDRESSES. A written summary of each

public meeting will be made a part of the administrative record for

this rulemaking.

II. Discussion of Rule

A. Background

On March 13, 1979, OSM promulgated permanent program rules as

required by section 501(b) of the Surface Mining Control and

Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C. 1201 et seq.)

(SMCRA or the Act). See 44 FR 14902. The Act prohibits surface coal

mining operations on all lands designated in section 522(e), subject to

valid existing rights

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and except for those operations which existed on August 3, 1977. Lands

designated in section 522(e)(1) include any lands within the boundaries

of units of the National Park System, the National Wildlife Refuge

Systems, the National System of Trails, the National Wilderness

Preservation System, the Wild and Scenic Rivers System, including study

rivers designated under section 5(a) of the Wild and Scenic Rivers Act

(16 U.S.C. 1276(a)) or study rivers or study river corridors as

established in any guidelines pursuant to that Act, and National

Recreation Areas designated by Act of Congress. Additional lands

designated by sections 522(e) (2), (3), (4), and (5) include National

Forests; publicly owned parks; properties listed on the National

Register of Historic Places; 100 foot buffer zones around public roads

and cemeteries; and 300-foot buffer zones around occupied dwellings,

public buildings, schools, churches, community or institutional

buildings, and public parks. The term ``valid existing rights'' (VER)

is not defined in SMCRA. In a separate rulemaking, published in this

issue of the Federal Register OSM intends to define VER and address

requirements and procedures for the submission and processing of VER

claims.

Under section 522(e), if a person who proposes to conduct a surface

coal mining operation on protected lands does not qualify for one of

the statutory exceptions, then the person cannot conduct the intended

operation on such lands. See 30 CFR section 773.15(c)(3)(ii) (1990).

Section 522(e) does not specifically mention subsidence as a prohibited

activity.

The need for this interpretative rulemaking derives in part from

litigation concerning the applicability of the sections 522(e) (4) and

(5) prohibitions to underground mining. The issue is whether and to

what extent subsidence and underground coal extraction operations which

cause or are expected to cause subsidence are prohibited. In 1988, OSM

issued a proposed rule to address the issue. See 53 FR 52374, December

27, 1988. However, the entire proposed rule was withdrawn for further

study in 1989. 54 FR 30557, July 21, 1989. The withdrawal was based on

comments received on the proposed rule, and on OSM's analysis of the

issues, which indicated to OSM that this was fundamentally a legal

issue. OSM therefore decided to seek a formal opinion from the Office

of the Solicitor, U.S. Department of the Interior, on this matter. The

Solicitor completed his review of this issue in July, 1991, and

concluded that the best interpretation of SMCRA is that subsidence is

not a surface coal mining operation subject to the prohibitions of

Sec. 522(e).

The Solicitor's Memorandum of Opinion (M-Op.) is based on an

extensive analysis of the statute, the legislative history, relevant

case authority and OSM's regulatory actions with respect to the

applicability of section 522(e) to subsidence from underground mining.

The M-Op. concluded that Congress did not intend for the prohibitions

of section 522(e) to apply to subsidence from underground mining and

noted that OSM may regulate subsidence solely under section 516 of

SMCRA and not under section 522(e). While the M-Op. recognizes that

regulation under section 516 may not have precisely the same effect as

regulation under section 522(e), the analysis provides support for the

conclusion that regulation under section 516 will achieve full

protection of the environmental values which Congress sought to protect

from subsidence under the Act while encouraging longwall mining.

On July 18, 1991, OSM published a Notice of Inquiry (NOI) which

stated that, based on OSM's review of the Act and the legislative

history, the comments received on the December 27, 1988, proposal, and

the M-Op., OSM concluded that no further rulemaking action was

necessary in regard to the applicability of section 522(e) prohibitions

to underground mining. OSM concluded that the regulations, at 30 CFR

761.11 (d), (e), (f) and (g), adequately address underground mining and

appropriately apply the statutorily-established buffer zones in a

horizontal dimension only.

On September 6, 1991, the National Wildlife Federation (NWF) filed

legal action against the Secretary challenging the July 18 NOI and the

July 10 M-OP., on the applicability of 522(e) of SMCRA to subsidence.

National Wildlife Federation (NWF) v. Babbitt, No. 91-2275-TAF (D.D.C.

September 22, 1993). The NWF contended that both the M-Op. and the NOI

violated the requirements of the Administrative Procedure Act (APA),

the National Environmental Policy Act (NEPA), and SMCRA. NWF requested,

among other things, that the court order OSM to undertake rulemaking to

determine the applicability of Section 522(e) to subsidence, and vacate

the M-Op. and the NOI. In addition, a motion was filed by the

Interstate Mining Compact Commission (IMCC) and a number of industry

groups, including the National Coal Association (NCA) and American

Mining Congress (AMC), to intervene as defendants in this action. That

motion was granted by the court.

The district court vacated the NOI on September 23, 1993, on

procedural grounds, and remanded the case to the Secretary for

rulemaking on the applicability of section 522(e) to subsidence, in

accordance with the notice and comment procedures of the APA, 5 U.S.C.

section 551 et seq. National Wildlife Federation (NWF) v. Babbitt, No.

91-2275-TAF (D.D.C. September 22, 1993).

B. Statutory Analysis

Title V of the Act sets forth the basic regulatory requirements for

coal mining operations for which permits are required under the Act.

Title V includes provisions which establish regulatory schemes for

surface coal mining, the surface effects of underground coal mining,

and protection of lands unsuitable for surface coal mining operations.

Analysis of the structure of Title V and the Act as a whole

confirms that Congress set out related but separate regulatory schemes

for surface and underground mining. Congress had received ample

testimony prior to the passage of the Act regarding the differences in

both the nature and consequences of the two types of coal mining. The

legislative history emphasizes that the differences in the nature and

consequences of the two types of mining require significant differences

in regulatory approach. See SMCRA section 516(a), 30 U.S.C. 1266(a);

see also SMCRA sections 516 (b)(10) and (d), 30 U.S.C. 1266 (b)(10) and

(d). See, e.g., H.R. Rep. No. 2 18, 95th Cong., 1st Sess. 59 (1977); S.

Rep. No. 128, 95th Cong., 2nd Sess. 50 (1977); H.R. Rep. No. 1445, 94th

Cong., 2nd Sess. 19 (1976); S. Rep. No. 402, 93rd Cong., 2nd Sess. 83

(1973); H.R. Rep. No. 1072, 93rd Cong. 2nd Sess. 57, 108 (1974); H.R.

Rep. No. 1462, 92nd Cong., 2d Sess. 32 (1972); 123 Cong. Rec. 8083,

8154 (1977); 123 Cong. Rec. 7996 (1977); 123 Cong. Rec. 3726 (1977).

For instance, Congress was aware that the types of environmental

risks associated with underground mining are, for the most part,

significantly different from those associated with surface mining.

Environmental impacts associated with (pre-SMCRA) unregulated or

unreclaimed underground mines included subsidence and hydrological

problems that were hidden deep underground and not observable at the

surface for an unpredictably long time. Such surface consequences could

be severe and long-lasting. The problems in some cases remained

fundamentally inaccessible or

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unchangeable because of adverse technological, geological and

hydrological conditions.

By contrast, most of the impacts of unregulated pre-SMCRA surface

mining resulted from surface activities that were more immediate and

more readily observable, and the resulting conditions were relatively

accessible for reclamation. See H.R. Rep. NO. 1445, 94th Cong., 2d

Sess. 20-22 (1976).

This proposed rulemaking addresses whether the provisions of

section 522(e), which expressly apply to ``surface coal mining

operations,'' should be construed as applying to subsidence from

underground mining, which is not specifically referenced in the

definition of that term. Addressing this issue requires interpretation

of the phrase ``surface coal mining operations'' as used in section

522(e) and defined in section 701(28). See 30 U.S.C. 1272(e); 1291(28).

In the past, OSM has not taken a definitive position on the issue

of the applicability of section 522(e) to subsidence. In some

documents, OSM has apparently taken the position that section 522(e)

does apply to subsidence from underground mining. In the 1979

rulemaking which first established permanent program rules under SMCRA,

OSM dealt with this issue in two provisions. Concerning the definitions

at 30 CFR 761.5, OSM rejected a comment that ``surface operations and

impacts incident to an underground mine'' should be limited to

subsidence. 44 FR 14990, March 13, 1979. Such operations and impacts

are permitted in some circumstances in National Forests under an

exception to section 522(e)(2). The negative implication would appear

to be that such operations and impacts (including subsidence) are

otherwise prohibited by section 522(e).

In the preamble discussion of the regulation at 30 CFR 761.11(d),

which concerned the section 522(e)(4) prohibition on mining within 100

feet of the right-of-way of a public road, OSM accepted a comment that

the 100 feet should be measured horizontally ``so that underground

mining below a public road is not prohibited.'' OSM stated its belief

that mining under a road should not be prohibited ``where it would be

safe to do so.'' 44 FR 14994, March 13, 1979. The negative implication

from this last clause would appear to be that mining under a public

road should be prohibited where it would be unsafe to do so, but the

preamble does not discuss whether such prohibition would come from

section 516 or from an interpretation that section 522(e) prohibits

subsidence that causes material damage.

See also letter of Patrick Boggs, Office of Surface Mining, to

Ralph Albright, Jr., regarding Otter Creek Coal Co. v. United States,

January 19, 1981; and Determination of Valid Existing Rights Within the

Otter Creek Wilderness Area of Monongahela National Forest; Notice, 49

FR 31228, 31231, 31233 (August 3, 1984), characterizing subsidence as a

prohibited surface impact under section 522(e); and Federal Defendant's

Supplemental Memorandum on the Relationship Between section 522(e) and

the Surface Impacts of Underground Coal Mining at 8, In re Permanent

Surface Mining Regulation Litigation II, No. 79-1144 (D.D.C. 1985).

However, in its approvals of State regulatory programs, OSM has not

required states to apply the lands unsuitable prohibitions to

subsidence. In fact, OSM has accepted both the policy of some states

not to apply the prohibitions to subsidence, and the policy of other

states to apply the prohibitions only to subsidence causing material

damage. See Statement of Interstate Mining Compact Commission Re

Oversight Hearing on Subsidence Issues, Before the Mining and Natural

Resources Subcommittee, Committee on Interior and Insular Affairs, U.S.

House of Representatives, June 28, 1990. With the exception of

Colorado, Illinois, Indiana, and Montana, states with active

underground coal mining do not apply the prohibitions of section 522(e)

to subsidence. The states regulate the effects of subsidence through

state regulations which implement section 516 of SMCRA. Those

regulations provide for the restriction, repair, and compensation for

subsidence and material damage to certain structures and lands.

Colorado does not allow material damage to structures even with

landowner waivers or VER. Illinois prohibits planned subsidence in

section 522(e) areas. The mineral owner must possess the right to

subside through applicable waiver or VER. Indiana regulations prohibit

material damage from subsidence to certain structures and lands.

Indiana has not approved planned subsidence in past permits, and has

not developed specific policies related to the approval of planned

subsidence. Information obtained from Indiana indicates that it

anticipates that it would prohibit subsidence unless the mineral owner

possesses the specific right through applicable waiver or VER. Also,

Montana has no defined policy regarding the regulation of subsidence.

This is due in part to the fact that the State has one inactive

underground mine that has not begun production. Montana is sparsely

populated, and has not encountered conditions that require it to

determine whether subsidence is prohibited in section 522(e) areas. See

Proposed Revision to the Permanent Program Regulations Implementing

section 522(e) of the Surface Mining Control and Reclamation Act of

1977, Draft Environmental Impact Statement: OSM-EIS-29 (June, 1995),

prepared by U.S. Office of Surface Mining Reclamation and Enforcement,

Table II-1 at pages II-2,3.

Because OSM arguably has taken conflicting or unclear positions in

the past, OSM is proposing to develop a definitive position on this

issue, consistent with the Act. For the reasons set forth below, OSM

proposes to interpret SMCRA as regulating subsidence under sections 516

and 720; and proposes to interpret section 522(e) in light of the

statutory definition of ``surface coal mining operations'' in section

701(28), as not applying to subsidence from underground mining.

Section 516

Section 516 establishes the regulatory requirements for the surface

effects of underground coal mining, including provisions for the

control of subsidence from underground coal mining. SMCRA section 516

provides in relevant part:

(a) The Secretary shall promulgate rules and regulations

directed toward the surface effects of underground coal mining

operations, embodying the following requirements and in accordance

with the procedures established under section 501 of this Act:

Provided, however, That in adopting any rules and regulations the

Secretary shall consider the distinct difference between surface

coal mining and underground coal mining. * * *

(b) Each permit issued under any approved State or Federal

program pursuant to this Act and relating to underground coal mining

shall require the operator to--

(1) adopt measures consistent with known technology in order to

prevent subsidence causing material damage to the extent

technologically and economically feasible, maximize mine stability,

and maintain the value and reasonably foreseeable use of such

surface lands, except in those instances where the mining technology

used requires planned subsidence in a predictable and controlled

manner: Provided, That nothing in this subsection shall be construed

to prohibit the standard method of room-and-pillar mining:

(c) In order to protect the stability of the land, the

regulatory authority shall suspend underground coal mining under

urbanized areas, cities, towns, and major -impoundments, or

permanent streams if he finds imminent danger to inhabitants of the

urbanized areas, cities, towns, and communities.

(d) The provisions of Title V of this Act relating to State and

Federal programs,

[[Page 4867]]

permits, bonds, inspections and enforcement, public review, and

administrative and Judicial review shall be applicable to surface

operations and surface impacts incident to an underground coal mine

with such modifications to the permit application requirements,

permit approval or denial procedures, and bond requirements as are

necessary to accommodate the distinct difference between surface and

underground coal mining, * * *

30 U.S.C. section 1266.

Section 516 is implemented in large part at 30 CFR Part 817, which

sets forth the performance standards for underground coal mining. The

provisions concerning subsidence control in Part 817 include

performance standards which require the prevention of material damage

and maintaining the value and reasonably foreseeable use of surface

lands, or using mine technology for planned subsidence in a predictable

and controlled manner; compliance with the subsidence control plan;

repair of material damage; and a detailed plan of underground workings.

Section 516(b) sets the foundation for a regulatory scheme intended

to control subsidence to the extent technologically and economically

feasible in order to protect the value and use of surface lands.

Section 516(c) authorizes suspension of underground mining under urban

areas and water bodies, when there is imminent danger to inhabitants.

Section 516(c) applies in those situations in which an underground mine

has been permitted because all applicable permitting standards,

including standards for prevention of material damage, have been met,

but actual underground mining poses a serious subsidence danger to

inhabitants of urban areas and water bodies.

Section 515

Section 515 of the Act sets out the environmental protection

performance standards for surface coal mining, including standards for

backfilling and grading to approximate original contour; revegetation;

reconstruction of prime farmlands; impoundments; augering; protecting

the hydrologic balance; protecting fish and wildlife values; disposal

of excess spoil, mine waste, and acid-forming and toxic materials, use

of explosives; and constrution of roads. This section is implemented in

large part at 30 CFR Part 816.

Section 720

Section 720 of SMCRA was added by the Energy Policy Act of 1992,

Public law 102-486, 106 Stat. 2776 (1992). The statute was enacted on

October 24, 1992. Section 720 provides, in relevant part:

(a) Underground coal mining operations conducted after the date

of enactment of this section shall comply with each of the following

requirements:

(1) Promptly repair, or compensate for, material damage

resulting from subsidence caused to any occupied residential

dwelling and structures related thereto, or non-commercial building

due to underground coal mining operations. Repair of damage shall

include rehabilitation, restoration, or replacement of the damaged

occupied residential dwelling and structures related thereto, or

non-commercial building and shall be in the full amount of the

diminution in value resulting from the subsidence. * * *

(2) Promptly replace any drinking, domestic, or residential

water supply from a well or spring in existence prior to the

application for a surface coal mining and reclamation permit, which

has been affected by contamination, diminution, or interruption

resulting from underground coal mining operations. Nothing in this

section shall be contrued to prohibit or interrupt underground coal

mining operations.

30 U.S.C. 1310.

On March 31, 1995, OSM published final regulations implementing

these provisions. The implementing regulations are set forth primarily

in Parts 701, 784, and 817. Amendments to Part 701 provide definitions

of key terms. The regulations require a presubsidence survey to

document the condition of protected structures and the quantity and

quality of protected water supplies, that could be damaged by

subsidence. The regulations also clarify that, if the proposed mining

would provide for planned subsidence in a predictable and controlled

manner, then, with certain exceptions, the permittee must take measures

consistent with the mining method, to minimize material damage to the

extent technologically and economically feasible to non-commercial

buildings dwellings and related structures.

Section 522(e)

In addition to the regulation of surface and underground coal

mining under sections 515, 516, and 720, SMCRA section 522(e) imposes

certain prohibitions on surface coal mining operations on lands

designated by Congress as unsuitable for those operations. Congress

determined that the nature and purpose of certain areas and land uses

were incompatible with surface coal mining operations. See S. Rep. No.

128, 95th Cong. 1st Sess. 55 (1977). Therefore, SMCRA section 522(e)

states that, with certain exceptions, surface coal mining operations

are prohibited on or within specified distances of those lands and

uses.

Section 522(e) provides, in relevant part, as follows:

After the enactment of this Act and subject to valid existing

rights no surface coal mining operations except those which exist on

the date of enactment of the Act shall be permitted--

(1) on any lands within the boundaries of units of the National

Park System, the National Wildlife Refuge Systems, the National

System of Trails, the National Wilderness Preservation System, the

Wild and Scenic Rivers System, including study rivers designated

under section 5(a) of the Wild and Scenic Rivers Act and National

Recreation Areas designated by Act of Congress;

(2) on any Federal lands within the boundaries of any national

forest: Provided, however, That surface coal mining operations may

be permitted on such lands if the Secretary finds that there are no

significant recreational, timber, economic, or other values which

may be incompatible with such surface mining operations and--

(A) surface operations and impacts are incident to an

underground coal mines or

(B) where the Secretary of Agriculture determines, with respect

to lands which do not have a significant forest cover within those

national forests west of the 100th meridian, that surface mining is

in compliance with the Multiple-Use Sustained-Yield Act of 1969, the

Federal Coal Leasing Amendments Act of 1975, the National Forest

Management Act of 1976, and the provisions of this Act: And provided

further, that no surface coal mining operations may be permitted

within the boundaries of the Custer National Forests;

(3) which will adversely affected any publicly owned park or

places included in the National Register of Historic Sites unless

approved jointly by the regulatory authority and the Federal, State,

or local agency with jurisdiction over the park or the historic

site;

(4) within one hundred feet of the outside right-of-way line of

any public road, except where mine access roads or haulage roads

join such right-of-way line and except that the regulatory authority

may permit such roads to be relocated or the area affected to lie

within one hundred fact of such road, if after public notice and

opportunity for public hearing in the locality a written finding is

made that the interests of the public and the landowners affected

thereby will be protected; or (5) within three hundred feet from any

occupied dwelling, unless waived by the owner thereof, nor within

three hundred feet of any public building, school, church,

community, or institutional building, public park, or within one

hundred fact of a cemetery.

30 U.S.C. 1272(e) (emphasis added).

Section 522(e) is implemented primarily at 30 CFR Part 761. That

part provides definitions of key terms concerning SMCRA section 522(e)

and describes the procedures to be followed in implementing the

prohibitions of section 522(e). Sections 522(e) (4) and (5) are

implemented by 30 CFR 761.11 (d) through (g) which provides that

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subject to valid existing rights and an exemption for mines existing on

August 3, 1977, no surface coal mining operations shall be conducted

within the specified distances, ``measured horizontally,'' of the

listed features and facilities. The regulation implementing section

522(e) requires a determination, as a prerequisite for permit issuance

under section 515 or 516, whether a requester has the right to conduct

a surface coal mining operation of such lands. 30 CFR 761.12 (1990).

The language ``measured horizontally,'' was added in response to a

comment which requested that OSM clarify that underground mining

beneath a public road would not be prohibited. Although, OSM explained

that it did not believe mining under a road should be prohibited when

it would be safe to do so, OSM provided no clarification as to what is

meant by ``safe to do so.''

Section 701(28)

Section 522(e) of SMCRA establishes that subject to VER and except

for operations existing on August 3, 1977, ``surface coal mining

operations'' are prohibited in each of the five areas set out in

subparagraphs (e)(1) through (e)(5). Thus an understanding of the

definition of the term ``surface coal mining operations'' in section

701(28) is required to determine the scope of the prohibitions. The

term ``surface coal mining operations'' is defined in section 701(28)

and includes certain aspects of underground coal mining. However,

section 701(28) does not specifically mention subsidence.

Section 701(28) provides in full as follows:

``surface coal mining operations'' means--

(A) activities conducted on the surface of lands in connection

with a surface coal mine or subject to the requirements of section

516 surface operations and surface impacts incident to an

underground coal mine, the products of which enter commerce or the

operations of which directly or indirectly affected interstate

commerce. Such activities include excavation for the purpose of

obtaining coal including such common methods as contour, strip,

auger, mountaintop removal, box cut, open pit, and area mining, the

uses of explosives and blasting, and in situ distillation or

retorting, leaching or other chemical or physical processing, and

the cleaning, concentrating, or other processing or preparation,

loading of coal for interstate commerce at or near the mine site:

Provided, however, That such activities do not include the

extraction of coal incidental to the extraction of other minerals

where coal does not exceed 16\2/3\ per centum of the tonnage of

minerals removed for purposes of commercial use or sale or coal

explorations subject section 512 of this Act; and

(B) the areas upon which such activities occur or where such

activities disturb the natural land surface. Such areas shall also

include any adjacent land the use of which is incidental to any such

activities, all lands affected by the construction of new roads or

the improvement or use of existing roads to gain access to the site

of such activities and for haulage, and excavations, workings,

impoundments, dams, ventilation shafts, entryways, refuse banks,

dumps, stockpiles, overburden piles, spoil banks, culm banks,

tailings, holes or depressions, repair areas, storage areas,

processing areas, shipping areas and other areas upon which are

sited structures, facilities, or other property or materials on the

surface, resulting from or incident to such activities.

30 U.S.C. 1291(28).

Interpretation of Section 701(28)

While the definition of ``surface coal mining operation'' in SMCRA

section 701(28) is not a clearly drafted provision, OSM believes that

paragraph (A) of the definition includes only surface activities which

are connected with a surface coal mine, and surface activities

connected with those surface operations and surface impacts that are

incident to an underground mine and that are subject to section 516.

This proposed interpretation is consistent with the description of the

effect of section 701(28) in the Senate Report on the version of the

definition that was adopted:

``Surface [coal] mining operations'' * * * includes all areas

upon which occur surface mining activities and surface activities

incident to underground mining. It also includes all roads,

facilities, structures, property, and materials on the surface

resulting from or incident to such activities

S. Rep. No. 128, 95th Cong. 1st Sess. 98 (1977) (emphasis added).

Paragraph (B) of section 701(28) supports this interpretation.

Paragraph (A) refers to ``activities conducted on the surface of lands

in connection with a surface coal mine or * * * ``surface operations

and surface impacts incident to an underground coal mine * * *.''

Paragraph (B) refers to ``the areas upon which such activities occur or

where such activities disturb the natural land surface'' and to holes

or depressions ``resulting from or incident to such activities * * *''

(emphasis added). The only ``activities'' to which paragraph (B) could

refer are those described in paragraph (A), namely those conducted on

the surface of lands in connection with a surface coal mine or in

connection with the surface operations and impacts incident to an

underground coal mine.

Under this construction, subsidence would not be included within

the term ``surface coal mining operations'' because it is not an

activity conducted on the surface of lands, and it is not an area on

which surface activities occur, or an area where surface activities

disturb the surface, or a hole or depression resulting from or incident

to surface activities. Surface activities associated with surface

operations incident to underground mining, and surface activities

associated with surface impacts incident to underground mining would be

included in the definition. While subsidence is clearly a surface

impact incident to underground mining, it is not a surface activity

under the definition of surface coal mining operations. This reading of

subsection 701(28), however, would not mean that subsidence would be

exempt from regulation under the Act, since Congress specifically

provided for regulation of subsidence under section 516 of SMCRA.

Relationship of Section 522(e) to Sections 516 and 720

OSM believes, based on its interpretation of the language of

section 516 and of the legislative history, that Congress intended

section 516(c), in combination with other regulatory provisions under

section 516 and section 720, to offer sufficient prohibition,

prevention, or repair of subsidence damage to those features that

Congress considered vulnerable to significant impairment from

subsidence. The existence of this comprehensive regulatory scheme in

section 516 make it unlikely that Congress also intended to prohibit

subsidence under section 522(e).

The legislative history of section 516 contains ample references to

Congress' focus on control rather than prohibition. The following is

pertinent House Report language:

Surface subsidence has a different effect on different land

uses. Generally, no appreciable impact is realized on agricultural

land and similar types of land and productivity is not affected. On

the other hand when subsidence occurs under developed land such as

that in an urbanized area, substantial damage results to surface

improvements be they private homes, commercial buildings or public

roads and schools. One characteristic of subsidence which disrupts

surface land uses is its unpredictable occurrence in terms of both

time and location. Subsidence occurs, seemingly on a random basis,

at least up to 60 years after mining and even in those areas it is

still occurring. It is the intent of this section to provide the

Secretary with the authority to require the design and conduct of

underground mining methods to control subsidence to the extent

technologically and economically feasible in order to protect the

value and use of surface lands.

H.R. Rep. No. 218, 95th Cong., 1st Sess. 126 (1977).

[[Page 4869]]

In those extreme cases in which Congress felt that prohibition

could be necessary, it provided broad authority under section 516(c):

In order to prevent the creation of additional subsidence

hazards from underground mining in developing areas, subsection (c)

provides permissive authority to the regulatory agency to prohibit

underground coal mining in urbanized areas, cities, towns and

communities, and under or adjacent to industrial buildings, major

impoundments or permanent streams.

S. Rep. No. 128 at 84-85.

It is reasonable to conclude that Congress addressed specifically,

in section 516(c), the limited types of surface features that might be

so significantly affected by subsidence from underground mining that a

subsidence prohibition could be appropriate. This conclusion that

prohibition was to be imposed solely under 516(c) is buttressed by the

discussion in the House report quoted above, that subsidence has no

appreciable impact on agricultural land and similar types of land. It

is not necessary to impose the prohibitions of section 522(e) on

subsidence because the surface features that might need such protection

are covered by section 516(c).

This conclusion is also supported by the discussion in the 1977

Senate report on section 522(e) which notes that ``surface coal

mining'' is prohibited within the specified distances of public roads,

occupied buildings, and active underground mines, ``for reasons of

public health and safety.'' S. Rep. No. 128 at 55. Clearly, one of

Congress' purposes in section 522(e)(4)-(5) was to protect public

health and safety. Prohibition of subsidence in all section 522(e)

areas would be unnecessary, however, given that an underground mine

must meet the requirements of section 516 to prevent material damage

and to maintain the value and use of lands, and those requirements

should prevent risks to public health and safety. Moreover, if an

unforeseen and imminent subsidence danger were to arise, section 516(c)

requires that underground mining be suspended as necessary, thus

providing a second level of protection for public health and safety.

Therefore, Congress had already addressed in section 516 those

subsidence control measures necessary to address public health and

safety.

Sections 516 and 720, the sections of the Act expressly dealing

with subsidence, treat subsidence as a surface impact to be regulated

only to the extent that it:

(1) Causes material damage (section 516(b)(1) and section

720(a)(1)), or

(2) Diminishes the value or the reasonably foreseeable uses of

the surface (section 516(b)(1)) or

(3) Creates imminent danger (section 516(c)), or

(4) Contaminants, diminishes, or interrupts a domestic water

supply (section 720(a)(2)).

The legislative history of SMCRA indicates that Congress was only

concerned with subsidence insofar as it causes environmental or safety

problems, disrupts land uses, or diminishes land values. Congress has

repeatedly recognized that there is little concern about subsidence

that causes no significant damage to a surface use or facility or

danger to human life or safety. See H.R. Rep. No. 218, 95th Cong., 1st

Sess. 126 (1977); H.R. Rep. No. 1445, 94th Cong., 2nd Sess. 71-72

(1976); H.R. Rep. No. 896, 94th Cong., 2d Sess. 73-74 (1976); H.R. Rep.

No. 45, 94th Cong. 1st Sess. 115-116 (1975); H.R. Rep. No. 1072, 93rd

Cong., 2d Sess. 108-109 (1974); H.R. Rep. No. 776, 102nd Cong., 2d

Sess. 102-474 (1992).

Congressional Intent

OSM's proposed interpretation is consistent with Congress' intent

to encourage underground mining and full coal resource recovery. The

statute and legislative history express Congress' intent to ``encourage

the full utilization of coal resources through the development and

application of underground extraction technologies,'' SMCRA section

102(k), 30 U.S.C. section 1202(k). Similarly, Congress found that:

The overwhelming percentage of the Nation's coal reserves can

only be extracted by underground mining methods, and it is,

therefore, essential to the national interest to insure the

existence of an expanding and economically healthy underground coal

mining industry.

SMCRA section 101(b), 30 U.S.C. section 1201(b).

In fact, there is evidence that Congress wished to encourage

longwall mining in particular:

Underground mining is to be conducted in such a way as to assure

appropriate permanent support to prevent surface subsidence of land

and the value and use of surface lands, except in those instances

where the mining technology approved by the regulatory authority at

the outset results in planned subsidence. Thus, operators may use

underground mining techniques, such as long-wall mining, which

completely extract the coal and which result in predictable and

controllable subsidence.

S. Rep. No. 128, 95th Cong., 1st Sess. 84 (1977). See also S. Rep.

No. 28, 94th Cong., 1st Sess. 215 (1975).

Clearly, if subsidence is likely to occur from room-and-pillar

underground mining and is a virtually inevitable consequence of

longwall mining, then prohibiting all subsidence below homes, roads,

and other features specified in section 522(e) could make it

substantially less feasible to mine and could substantially reduce the

level of coal recovery in areas where such features are common on the

surface.

Thus, inclusion of subsidence in the definition of ``surface coal

mining operations'' at section 701(28), and application of the section

522(e) prohibitions to subsidence could be regarded as failing to

accommodate congressional recognition of the importance of underground

mining and longwall mining in particular. The application of the

prohibitions in section 522(e) to subsidence could substantially

impeded longwall and other full-extraction mining methods. As discussed

above, the language of SMCRA demonstrates that Congress intended to

encourage underground mining and especially full-extraction methods

such as longwall mining. Congress intended that longwall and other

mining techniques that completely remove the coal be used as subsidence

control measures. See H.R. Rep. No. 218, supra. Such techniques involve

planned subsidence.

Comparison of Underground Mining Techniques

Mine productivity improved significantly during the 1980's thus

reversing the declining trend of the earlier decade. Productivity

increased by an average of 6.6 percent per year between 1980 and 1990

(Department of Energy, Energy Information Administration (EIA), 1990).

Improvement in underground mine productivity was particularly

impressive. While surface mining productivity rose 86 percent during

the 1980's, productivity at underground mines more than doubled.

The increases in productivity can be attributed to intense

competition between coal producers, technology advancement, changing

market conditions, improved labor/management relations, and a matured

and more experienced labor force. The three primary underground mining

methods principally used to extract coal are room-and-pillar, room-and-

pillar with secondary mining, and longwall mining. Room-and-pillar is

the predominant underground mining method, although longwall mining has

increased in use in the United States since 1960.

[[Page 4870]]

Room and Pillar Mining

Room and pillar mining is the predominant method of coal extraction

in the United States. The room and pillar method in its basic form

consists of driving entries, rooms and cross-cuts into the coal seam to

extract coal. Pillars of coal are left to support the mine roof, or for

haulage and ventilation. This procedure is called ``development''

mining. Movements of the ground surface during this procedure are

nearly always imperceptible.

To increase the extraction of coal where conditions allow,

development mining is followed by ``pillar recovery,'' where the

pillars are systematically extracted. This is called secondary (or

retreat) mining. Secondary mining occurs when the coal pillars left to

support the mine roof are extracted during the retreat mining phase to

obtain maximum recovery of the coal.

Pillar extraction is invariably accompanied by subsidence of the

ground surface as the overburden sags into the mined-out area in

response to the removal of mine-level support. Where pillar extraction

is not conducted and the operator intends to leave surface support, the

pillars must be designed to permanently support the overburden.

During the development mining phase, 30 to 50 percent of the coal

may be extracted from the panel. In order to prevent subsidence, the

remainder of the coal may not be recovered from a mine panel. However,

when the roof collapses in a controlled fashion and the surface

subsidence is not a limiting factor, secondary mining can be practiced

to increase the coal recovery up to 85 percent.

Longwall Mining

Longwall mining is a high extraction mining method that maximizes

the recovery of coal resources. The development of the mains and sub-

mains for access and ventilation of the longwall panels is essentially

identical to the development of room and pillar mining. However, the

longwall mining methods differs from room-and-pillar mining in that the

mine working panel is fully extracted during mining by a fully

automated shearer or plow. The mineral extraction ratio for longwall

mining operation can be as high as 90 percent in each panel. Retreat

mining on a longwall panel results in 100 percent coal extraction.

In longwall mining, groups of three or four parallel entries are

driven perpendicular to the main entry on either side of the proposed

panel. The width of the panel varies from 500 to 1,200 feet, and length

from 4,000 to 15,000 feet. Longwall mining removes the coal in one

operation by means of a long working face or wall that advances, or

retreats, in a continuous line. The coal is cut by a shearer or coal

plough which travels up and down along the face and makes 27 to 39 inch

deep cuts. The broken coal falls on to an Armored Flexible Conveyor

(AFC) which transfers the coal to the Stage Loader. The coal is then

conveyed to the surface through several belt conveyors. Mechanical

steel supports known as Shields or Chocks are used to support the mine

roof along the entire longwall face. After each cutting cycle of the

shearer/plough, the steel supports and AFC are hydraulically advanced.

The mine roof immediately behind the AFC is allowed to cave. The space

from which the coal has been removed is either allowed to collapse or

is completely or partially filled with stone and debris. The roof rock

that falls into the mined our area is referred to as the ``gob.'' As

the overburden continues to collapse, effects of subsidence progresses

upwards to the surface. However, solid coal barriers and pillars are

left in the mine for haulage, ventilation, and other purposes. Ninety

percent of the surface subsidence caused by longwall mining occurs

within 4 to 6 weeks of mining.

Significance of Longwall mining. Longwall mining has a long history

of use in Europe and has been tried at various times in the United

States. In early attempts--some prior to 1900--labor costs associated

with moving manual supports made the methods less competitive than room

and pillar mining. But, in the past two decades, longwall mining has

become the safest, most productive and most economic underground mining

method. While overall underground production remained relatively flat

between 1980 and 1993, longwall production grew at an annual rate of

6.1 percent. Longwall mining is anticipated to continue to be an

important and expanding type of mining. In 1993, it accounted for 38

percent of the coal extracted by underground mining methods, were

recovered by longwall mining. The Economic Analysis (EA) estimates that

longwall mining will account for 48 percent of production by 2015. See

(Proposed Revision to the Permanent Program Regulations Implementing

section 522(e) of the Surface Mining Control and Reclamation Act of

1977, and Proposed Rulemaking Clarifying the Applicability of section

522(e) to Subsidence from Underground Mining prepared by OSM and USGS,

(September 1, 1995)

Longwall mining operations require large investments in capital

equipment, but are less labor intensive than room-and-pillar

operations. It is estimated that longwall mining requires only one-

third of the manpower at the face as does room-and-pillar mining. The

high capital costs associated with longwall mining are generally offset

with lower operating costs, due primarily to the higher productivity of

longwall mining. The average operating costs for a coal mine operation

include the operating cost per ton and the return on the capital cost

allocated per ton. The operating costs for longwall mine range from

$0.50 to $2.00 per ton, while operating costs for room-and-pillar range

from $2.00 to $7.00 per ton, while Room-and-pillar mining operation

costs average an additional $3.25 per ton more than longwall mining

because of increased labor and material costs associated with mine

operation.

In some instances, use of the longwall mining method is the most

economical and safest means to extract the coal in particular geologic

areas. For example, when a coal seam is 1,000 feet or more below the

surface, the cost of mining would be so high that it would effectively

prevent coal from being mined by any method other than longwall.

Another example are those areas where the high limestone content in

particular coal seams creates fragile roof conditions which make room-

and-pillar mining impossible. Longwall mining provides the economy of

scale so that mining costs are lowered and a relatively safe working

environment is created.

Implications of Applying 522(e) Prohibitions to Subsidence From

Underground Mining

Currently, owners of coal reserves, who hold valid deeds, typically

have the property right to mine coal beneath dwellings without

obtaining explicit permission in the form of waivers from owners of the

dwellings.

However, under SMCRA when the coal is mined, the mining companies

must meet all existing subsidence performance standards, take steps to

minimize damage to dwellings, repair or compensate for damage that does

occur to dwellings, assure adequate domestic water supplies, and take

other measures as set out in OSM's recent regulations on subsidence (60

FR 16722 (Friday, March 31, 1995)).

If Section 522(e) were to apply to subsidence from underground

mining, the operator would be required to plan the operation to

preclude mining in all portions of the underground workings where

mining would cause subsidence

[[Page 4871]]

affecting a protected surface feature. The surface area affected by

subsidence is usually considerably larger than the area actually mined

underground. Because subsidence typically occurs in a funnel shape

radiating upward and outward from the underground mine cave-in, any

surface impacts may extend well beyond the area directly above the

mine. Thus, to ensure that subsidence would not take place within a

surface area specified in section 522(e), underground mine operations

would be required to leave coal in place around each protected feature

for a horizontal distance much larger than the protected area. The

amount of coal left in-place to support dwellings would result in a

pattern of irregular mined areas that would in effect, eliminate the

contiguous coal reserves needed to sustain the economic advantage of

longwall operations. Consequently, few new longwall mines would be

opened. Over time, existing longwall mines could continue those

operations that would extract coal reserves pursuant to the ``needed

for and adjacent to'' valid existing rights provisions implementing

SMCRA.

Mining could be allowed in some cases in lands protected by 522(e)

(2), (3), and (4), and some (5) areas, if an appropriate waiver or

approval were obtained by the permit applicant for mining coal directly

underneath the protected feature. The coal for which a mining company

would have to obtain a waiver would include the coal directly under the

dwelling, a 300-foot buffer around the house, and an additional buffer

area based on the predicted angle of draw and the depth of the coal

seam. However, homeowners could decide to withhold waivers denying

access to the coal under their dwellings and within the surrounding

buffer area. Both the Environmental Impact Statement and the Economic

Analysis indicate that the withholding of dwelling waivers has the

potential to significantly alter coal mining operations. The waiver

authority would apply to new longwall operations. Consequently, OSM

estimated that if 10 percent or more of homeowners withheld waivers,

longwall mining operations would not be economically viable. The

economic impacts of applying the prohibitions of section 522(e) to

subsidence are discussed in more detail in the draft Economic Analysis.

In summary, longwall mining is an important and expanding type of

mining. It accounted for 38 percent of the underground mining in 1993,

and is forecasted to increase its share to 48 percent by 2015. Longwall

mining is a low-cost underground mining method, and in some instances,

may be the only economically feasible underground mining method when

the coal seam is deep or the roof is extremely fragile. The key to the

competitive advantage of longwall mining is access to large blocks of

uninterrupted coal. If the prohibitions of 522(e) were to apply to

subsidence, longwall mining would no longer be economically feasible if

as few as 10 percent of the owners of occupied dwellings denied waivers

for mining. A more detailed discussion of impacts on mining is provided

in the Draft Environmental Impact Statement (DEIS) on the Proposed

Revision to the Permanent Program Regulations Implementing Section

522(e) of the Surface Mining Control and Reclamation Act of 1977, and

Proposed Rulemaking Clarifying the Applicability of Section 522(e) to

Subsidence from Underground Mining OSM-EIS-29 (September, 1995) and

Draft Economic Analysis prepared for this rulemaking. OSM also

evaluated the impact of various policy options for this rulemaking in

the DEIS and EA prepared for this proposed interpretative rulemaking.

OSM encourages comments on the DEIS and EA.

Summary of Analysis

Under Section 516, OSM has ample authority to regulate surface

effects of underground mining under existing regulations or under any

additional regulations that OSM might reasonably conclude are necessary

to implement the Act. There would be no regulatory hiatus if section

522(e) does not apply to subsidence. However, if OSM were to identify

any environmental values or public interests that warrant additional

protection, OSM has full authority under section 516 and other SMCRA

provisions, to develop standards to protect such values or interests,

without the disruption in the longwall mining industry that would

result from applying section 522(e) prohibitions to subsidence.

Based on analysis of the language and the legislative history of

sections 516, 522(e) and 701(28) of SMCRA, and a consideration of the

congressional findings and purposes set out in sections 101 and 102,

OSM proposes to interpret section 522(e) as not applying to subsidence

from underground mining activities, or to the underground activities

that may lead to subsidence. OSM bases this proposal in part on its

conclusion that subsidence is not included in the term ``surface coal

mining operations'' as defined in SMCRA section 701(28). OSM's

interpretation is also based in part on a conclusion that subsidence

from underground mining is properly and adequately regulated under

sections 516 and 720. OSM believes that this interpretation will

promote the general statutory scheme of SMCRA and fully protect the

environment and public interest. OSM is soliciting comments on the need

to amend 30 CFR to indicate that section 522(e) does not apply to

subsidence from underground coal mining activities, or the underground

activities that may lead to subsidence.

III. Procedural Matters

Federal Paperwork Reduction Act

This rule does not contain collections of information which require

approval by the Office of Management and Budget under 44 U.S.C. 3501 et

seq.

Executive Order 12630

In accordance with E.O. 12630, the Department has determined that

the proposed interpretative rule does not have significant takings

implications.

Executive Order 12866

This rule has been reviewed under E.O. 12866. It is considered

significant and OSM has prepared an economic analysis which is now

available to the public for review and comment.

Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,

the Department of the Interior has determined that this rule would not

have a significant economic impact on a substantial number of small

entities.

National Environmental Policy Act

On April 28, 1994 (59 FR 21996), OSM published a notice of intent

to prepare a revised environmental impact statement (EIS) analyzing

both VER and the applicability of the prohibitions in section 522(e) of

the Act to underground coal mining. OSM has completed a revised draft

EIS (OSM-EIS-29), which is now available to the public for review and

comment.

Executive Order 12988 (Civil Justice Reform)

This proposed rule has been reviewed under the applicable standards

of section 3(b)(2) of E.O. 12988, ``Civil Justice Reform'', (61 FR

4729). In general, the requirements of section 3(b)(2) are covered by

the preamble discussion of this rule. Individual elements of the order

are addressed below:

1. What is the preemptive effect, if any, to be given to the

regulation?

This interpretative rule is not intended to have a preemptive

effect on

[[Page 4872]]

existing state law. To the extent that this rule might ultimately

result in the preemption of state law, the provisions of SMCRA are

intended to preclude in-consistent State laws and regulations unless

they provide for more stringent land use or environmental controls and

regulations. This approach is established in SMCRA and has been

judicially affirmed.

2. What is the effect on existing federal laws or regulations, if

any, including all provisions repealed or modified?

This proposed rule would affect the implementation of SMCRA as

described in the preamble. It is not intended to modify the

implementation of any other federal statute. The preamble discussion

specifies the federal regulatory provisions that would be affected by

this rule.

3. Does the rule provide a clear and certain legal standard for

affected conduct rather than a general standard, while promoting

simplification and burden reduction?

As discussed in the preamble, the standards proposed in this rule

are as clear and certain as practicable, given the complexity of the

topics covered, the mandates of SMCRA and the legislative history of

section 522(e) of SMCRA.

4. What is the retroactive effect, if any, to be given to this

regulation?

This proposed rule is not intended to have retroactive effect.

5. Are administrative proceedings required before parties may file

suit in court? Which proceedings apply? Is the exhaustion of

administrative remedies required?

Since this rule is only in proposed form, these questions are not

applicable. However, if the rule is adopted as proposed, the following

answers would apply:

No administrative proceedings are required before parties may file

suit in court challenging the provisions of this rule under section

526(a) of SMCRA, 30 U.S.C. 1276(a). However, administrative procedures

must be exhausted prior to any judicial challenge to the application of

this rule. In situations involving OSM application of this rule,

applicable administrative procedures may be found at 30 CFR 775.11 and

43 CFR Part 4. In situations involving state regulatory authority

application of provisions analogous to those contained in this rule,

applicable administrative procedures are set forth in each state

regulatory program.

6. Does the rule define key terms, either explicitly or by

reference to other regulations or statutes that explicitly define those

items?

Terms important to the understanding of this rule are set forth in

30 CFR 700.5, 701.5 and 761.5.

7. Does the rule address other important issues affecting clarity

and general draftsmanship of regulations set forth by the Attorney

General, with the concurrence of the Director of the Office of

Management and Budget, that are determined to be in accordance with the

purposes of the Executive Order?

The Attorney General and the Director of the Office of Management

and Budget have not issued any guidance on this requirement.

Unfunded Mandates

For purposes of compliance with the Unfunded Mandates Reform Act of

1995, this rule will not impose any obligations that individually or

cumulatively would require an aggregate expenditure of $100 million or

more by State, local, and Tribal governments and the private sector in

any given year.

Author: The principal author of this proposed rule is Nancy

Broderick, Rules and Legislation, Office of Surface Mining

Reclamation and Enforcement, 1951 Constitution Avenue, N.W.,

Washington, DC 20240; Telephone (202) 208-2700.

List of Subjects in 30 CFR Part 761

Historic preservation, National forests, National parks, National

trails system, National wild and scenic rivers system, Surface mining,

Underground mining, Wilderness areas, Wildlife refuges.

Dated: April 30, 1996.

Bob Armstrong,

Assistant Secretary, Land and Minerals Management.

[FR Doc. 97-2183 Filed 1-30-97; 8:45 am]

BILLING CODE 4310-05-M