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: Final rule.

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

of the U.S. Department of the Interior is removing its regulation at 30

CFR 870.17. The regulation concerns the scope of audits conducted in

connection with OSM's abandoned mine land reclamation program.

EFFECTIVE DATE: The removal of the audit regulation at 30 CFR 870.17 is

effective on April 2, 1998.

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. Background

II. Discussion of Final Rule and Comments

III. Procedural Matters

I. Background

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

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

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 revision 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

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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. The 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 (62 FR 30232), OSM published in the Federal

Register a notice that it was suspending 30 CFR 870.17. 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) or SMCRA, and 30 CFR 870.16.

After further examination of the matter, OSM published a proposal

in the Federal Register on September 10, 1997 (62 FR 47617) to remove

section 870.17. The proposal was open for public comment until November

10, 1997.

II. Discussion of Final Rule

In this final rule OSM is removing section 870.17. In the above

previously referenced litigation, 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 ``Sec. 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 covered

by Sec. 1232(d)(2).

The NMA claimed that the court erred and appealed. The NMA stated

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 the persons already ``subject to'' Title IV--i.e., coal

mine operators. The NMA alleged 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 alleged 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 all the arguments made by the NMA,

it does recognize the serious nature of the issues raised. OSM also

understands that the general audit authority is still specified in

section 402(c) of SMCRA, and that it has broad administrative authority

granted under section 201(c) of SMCRA. Accordingly, OSM does not

believe that the withdrawal will hinder its audit or collection

efforts.

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.'' 30 U.S.C. 1232(d)(2). The agency will carry out this

legislative mandate, as it is set out in section 402(d)(2) of SMCRA.

Comments Received

Two parties commented on the proposed rule, agreeing with the

proposal for removal. However, both parties raised some concerns.

First, they pointed out that the preamble to the proposed rule in

section III was somewhat confusing, stating that OSM was ``not

proposing to move section 870.17.'' This was a typographical error by

the Federal Register, which published a correction notice on Tuesday,

November 18, 1997 (62 FR 61585). The line should have read that OSM is

``now proposing to remove section 870.17.'' Although other segments of

the original publication made it clear that we were proposing a

removal, we regret that this error was made.

Second, the commenters were concerned about a passage stating that

Congress specifically directed OSM to conduct such audits of coal

production and the payments of AML fees as may be necessary to ensure

full compliance with the provisions of Title IV. The commenters stated

that OSM should clarify its intent through this rule to limit audits to

only operators of coal mining operations. As we have stated above, OSM

will conduct its audits in conformance with the provisions of section

402(d)(2) of SMCRA. That section provides for the Secretary to conduct

audits of any surface coal mining and reclamation operation, including

without limitation, tipples and preparation plants, as may be necessary

in the judgment of the Secretary to ensure full and complete payment of

fees under this title. While OSM's audit authority may be limited to

those persons subject to the provisions of SMCRA, OSM intends to

continue to seek voluntary information from a variety of sources so

that it may meet its mandatory responsibility to ensure full and

complete payment of the fees. The Secretary is also provided

administrative subpoena authority in section 201(c) of SMCRA. OSM

intends to utilize this authority if the need arises to obtain

information for determining compliance, but will restrict audits to

those entities covered in the law.

III. Procedural Matters

Effect on State Programs

The withdrawal of this rule will have no effect on State or tribal

AML programs. Collection of the AML reclamation fee is a purely Federal

responsibility.

Paperwork Reduction Act

This rule withdrawal 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 final rule is not considered significant 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 that this rule

withdrawal does 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 withdrawn 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

withdrawal 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 rule withdrawal 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

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the Departmental Manual 516 DM 2, Appendix 1.10.

Author: The principal author of this rule withdrawal 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

Reporting and recordkeeping requirements, Surface mining,

Underground mining.

Dated: February 18, 1998.

Sylvia V. Baca,

Deputy Assistant Secretary for Land and Minerals Management.

For the reasons set forth in the preamble, 30 CFR part 870 is being

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. 98-5391 Filed 3-2-98; 8:45 am]

BILLING CODE 4310-05-M