# Abandoned Mine Land Reclamation Fund Reauthorization Implementation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A98-5391 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** March 3, 1998 - **Citation:** 63 FR 10307 ## Text 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. ----------------------------------------------------------------------- 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 [[Page 10308]] 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 [[Page 10309]] 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-5391. Public record. Not legal advice.