Abandoned Mine Land Reclamation Fund Reauthorization Implementation

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 870

RIN 1029-AB93

Abandoned Mine Land Reclamation Fund Reauthorization

Implementation

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule.

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

of the U.S. Department of the Interior is proposing to remove its

regulation at 30 CFR 870.17. The regulation governs the scope of audits

conducted in connection with OSM's abandoned mine land reclamation

program.

DATES: Written comments: OSM will accept written comments on the

proposed rule until 5 p.m., Eastern time, on November 10, 1997.

Public hearings: Upon request, OSM will hold public hearings on the

proposed rule at dates, times and locations to be announced in the

Federal Register prior to the hearings. OSM will accept requests for

public hearings until 5 p.m., Eastern time, on October 1, 1997.

Individuals wishing to attend, but not testify, at any hearing should

contact the person identified under FOR FURTHER CONTACT before the

hearing date to verify that the hearing will be held.

ADDRESSES: Written comments: Hand-deliver or mail to the Office of

Surface Mining Reclamation and Enforcement, Administrative Record, Room

117, 1951 Constitution Avenue, NW., Washington, D.C. 20240.

Electronic Mail: You may send comments through the Internet to

OSM's Administrative Record at: [email protected]. Copies of any

messages received electronically will be filed with the Administrative

Record.

Public hearings: You may submit a request for a public hearing

orally or in writing to the person and address specified under FOR

FURTHER INFORMATION CONTACT. The address, date and time for any public

hearing held will be announced prior to the hearings. Any individual

who requires special accommodation to attend a public hearing should

also contact the person listed under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Jim Krawchyk, Division of Compliance

Management, Office of Surface Mining Reclamation and Enforcement, 3

Parkway Center, Pittsburgh, PA 15220. Telephone 412-921-2676. E-mail:

[email protected].

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

II. Background

III. Discussion of Proposed Rule and Guidelines

IV. Procedural Matters

I. Public Comment Procedures

Written Comments: Written or electronic comments submitted on the

proposed rule should be specific, should be confined to issues

pertinent to the proposed rule, and should explain the reason for any

recommended change. Where practicable, commenters should submit three

copies of their comments. Comments received after the close of the

comment period (see DATES) or delivered to an address other than those

listed above (see ADDRESSES), may not

[[Page 47618]]

be considered or included in the Administrative Record for the final

rule.

Public hearings: OSM will hold a public hearing on the proposed

rule upon request only. The time, date and address for any hearing will

be announced in the Federal Register at least 7 days prior to the

hearing.

Any person interested in participating at a hearing should inform

Mr. Krawchyk (see FOR FURTHER INFORMATION CONTACT), either orally or in

writing, of the desired hearing location by 5:00 p.m., Eastern time, on

October 1, 1997. If no one has contacted Mr. Krawchyk to express an

interest in participating in a hearing by that date, a hearing will not

be held. If only one person expresses an interest, a public meeting

rather than a hearing may be held and the results included in the

Administrative Record.

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

testify have been heard. The hearing will be transcribed. To assist the

transcriber and ensure an accurate record, OSM requests that each

person who testifies at a hearing provide the transcriber with a

written copy of his or her testimony. To assist us in preparing

appropriate questions, we also request, if possible, that each person

who plans to testify submit to us at the address previously specified

for the submission of written comments (see ADDRESSES) an advance copy

of his or her testimony.

II. Background

On November 5, 1990, the President signed into law the Omnibus

Budget Reconciliation Act of 1990, Public Law 101-508. Included in that

law was the Abandoned Mine Reclamation Act of 1990 (AMRA) which amended

the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30

U.S.C. 1201 et seq. On May 31, 1994, OSM published final regulations in

the Federal Register (59 FR 28136) implementing the provisions of AMRA.

The final regulations included a version of 30 CFR 870.17 which

specifies who may conduct audits and whose records may be examined. The

revision, utilizing the authority in sections 201(c), 402(d)(2) and

413(a) of SMCRA, expanded the scope of section 870.17 to cover the

records of all persons involved in a coal transaction, including

permittees, operators, brokers, purchasers, and persons operating

preparation plants and tipples, and any recipient of royalty payments

from the coal mining operation.

In July 1994, the National Coal Association and the American Mining

Congress, predecessor organizations of the National Mining Association

(NMA), filed suit challenging the regulations promulgated by OSM,

specifically the scope of 30 CFR 870.17. On July 23, 1996, In National

Mining Ass'n v. U.S. Department of the Interior, No. 94-1642 (D.D.C.),

the United States District Court for the District of Columbia ruled in

favor of OSM. NMA appealed the district court's decision to the United

States Court of Appeals for the District of Columbia. After the parties

engaged in court-ordered mediation, the Department of Justice, upon

OSM's request, filed a motion to hold the case in abeyance pending new

rulemaking to resolve the issues in dispute and the U.S. Court of

Appeals granted the motion.

On June 3, 1997, OSM published in the Federal Register a notice

that it was suspending this rule (See 62 FR 30232). During the period

of suspension, OSM continued to conduct audits of operators of surface

coal mining operations, as necessary, under the provisions of section

402(d)(2) of SMCRA, and 30 CFR 870.16.

III. Discussion of Proposed Rule

OSM is not proposing to move section 870.17. In the litigation

discussed above, the NMA raised concerns over the scope of this

regulation. The District Court upheld OSM's final rule and granted

summary judgment in favor of defendants. While the District Court

acknowledged that ``Section 1232(d)(2) does not provide authority for

audits or inspections of those not directly regulated under SMCRA,'' it

nevertheless upheld OSM's rule on the ground that the agency has

authority under SMCRA's general rulemaking provisions to authorize

``broader audits and record inspections'' than those permitted by

Section 1232(d)(2).

NMA claims that the court erred and appealed. The NMA states that

both OSM and the District Court are required to give effect to

Congress' clearly expressed intent to limit the Secretary's audit

authority to persons already ``subject to'' Title IV of SMCRA--i.e.,

coal mine operators. The NMA alleges further that SMCRA's general

rulemaking provisions do not give OSM authority to assert audit

jurisdiction broader in scope than that expressly provided for in the

Act.

The NMA also alleges that OSM's interpretation contravenes the

Fourth Amendment of the Constitution by subjecting persons other than

surface coal mining operators to warrantless searches of ``all books,

papers, and other documents.''

Although OSM does not agree with the arguments made by the NMA, it

does recognize the serious nature of the issues raised. Given these

concerns OSM is proposing to remove this specific rule. OSM does not

believe that the removal will hinder its audit or collection efforts,

however. OSM still possesses significant administrative authority, as

well as the general audit authority in SMCRA section 402(d)(2), 30

U.S.C. 1232(d)(2), and 30 CFR 870.16 of the Secretary's regulations.

OSM believes that Congress specifically directed the agency to

``conduct such audits of coal production and the payment of fees under

[Title IV] as may be necessary to ensure full compliance with the

provisions of this title.'' The agency will continue to carry out this

legislative mandate.

IV. Procedural Matters

Paperwork Reduction Act

This proposed 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 12866

This proposed rule is not a significant rule under the criteria of

Executive Order 12866 and has not been reviewed by the Office of

Management and Budget.

Regulatory Flexibility Act

The Department of the Interior pursuant to the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq., certifies this proposed rule

will not have a significant economic effect on a substantial number of

small entities for the same reason that the promulgation of the rule in

1994 did not have such an impact. The particular provision being

suspended governs the scope of audits conducted by OSM and will have no

economic impact on small entities.

Executive Order 12988 on Civil Justice Reform

The Department of the Interior has determined that this rule meets

the requirements of sections (3)(a) and (3)(b)(2) of Executive Order

12988, Civil Justice Reform.

Unfunded Mandates Reform Act

The removal action will not impose a cost of $100 million or more

in any given year on any governmental entity or the private sector.

National Environmental Policy Act

This proposed rule has been reviewed by OSM, and it has been

determined to be categorically excluded from the National Environmental

Policy Act (NEPA) process in accordance with the Departmental Manual

516 DM 2, Appendix 1.10.

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Author: The principal author of this rule is Jim Krawchyk, Office

of Surface Mining, U.S. Department of the Interior, 3 Parkway Center,

Pittsburgh, PA 15220.

List of Subjects in 30 CFR Part 870

Incorporation by reference, Reporting and recordkeeping

requirements, Surface mining, Underground mining.

Dated: September 4, 1997.

Bob Armstrong,

Assistant Secretary for Land and Minerals Management.

Accordingly, 30 CFR part 870 would be amended as set forth below.

PART 870--ABANDONED MINE RECLAMATION FUND--FEE COLLECTION AND COAL

PRODUCTION REPORTING

1. The authority citation for Part 870 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-

34.

Sec. 870.17 [Removed]

2. Section 870.17 is removed.

[FR Doc. 97-23958 Filed 9-9-97; 8:45 am]

BILLING CODE 4310-05-M