Cost Recovery for Permit Processing, Administration, and Enforcement
Federal RegisterApr 4, 2013
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 701, 736, 737 et al.
Cost Recovery for Permit Processing, Administration, and Enforcement;
Proposed Rule; Republication
Federal Register / Vol. 78 , No. 65 / Thursday, April 4, 2013 /
Proposed Rules
[[Page 20394]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 701, 736, 737, 738, and 750
RIN 1029-AC65
[Docket ID OSM-2012-0003]
Cost Recovery for Permit Processing, Administration, and
Enforcement
Republication
Editorial Note: FR Doc. 2013-6950 which was originally published
on pages 18430-18444 in the issue of Tuesday, March 26, 2013 is
being republished in its entirety in the issue of Thursday, April 4,
2013 because of editing errors.
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)
proposes to revise its Federal and Indian Lands Program regulations for
the purposes of adjusting the existing permit fees and assessing new
fees to recover the actual costs for permit review and administration
and permit enforcement activities provided to the coal industry. These
fees are authorized under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA) and the Independent Offices Appropriations Act of
1952 (IOAA). The fees would be used to offset OSM's costs for
processing various permit applications and related actions,
administering those permits over their lifecycle, and performing
required inspections. The proposed fees would be applicable to permits
for coal mining on lands under OSM's direct regulatory jurisdiction.
The proposed fees would also be applicable to coal mining on Indian
lands where OSM is the regulatory authority. The primary purpose of
this rulemaking is to charge the surface coal mining and reclamation
operations that benefit from obtaining and operating under surface coal
mining and reclamation permits for OSM's costs to review, administer,
and enforce those permits instead of passing those costs on to the
general public.
DATES: Electronic or written comments: OSM will accept written comments
on the proposed rule on or before May 28, 2013. Comments on the
proposed rule's information collection should be submitted by April 25,
2013.
Public hearing: If you wish to testify at a public hearing, you
must submit a request before 4:30 p.m., Eastern Time, on April 16,
2013. OSM will hold a public hearing only if there is sufficient
interest. Hearing arrangements, dates and times, if any, will be
announced in a subsequent Federal Register notice.
ADDRESSES: Public comments: You may submit comments by any of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
The proposed rule has been assigned Docket ID: OSM-2012-0003. Please
follow the on-line instructions for submitting comments.
Mail/Hand-Delivery/Courier: Office of Surface Mining
Reclamation and Enforcement, Administrative Record, Room 252 SIB, 1951
Constitution Avenue NW., Washington, DC 20240. Please include the
Docket ID: OSM-2012-0003.
You may view the public comments submitted on this rulemaking at
http://www.regulations.gov. When searching for comments, please use the
Docket ID: OSM-2012-0003.
Public hearing: You may submit a request for a public hearing on
the proposed rule to the person and address specified under FOR FURTHER
INFORMATION CONTACT. If you require reasonable accommodation to attend
a public hearing, please contact the person listed under FOR FURTHER
INFORMATION CONTACT.
Information Collection: If you are commenting on the information
collection aspects of this proposed rule, please submit your comments
to the Office of Management and Budget, Office of Information and
Regulatory Affairs, Attention: Interior Desk Officer, via email to
[email protected], or via facsimile to 202-395-5806.
FOR FURTHER INFORMATION CONTACT: Michael F. Kuhns, Office of Surface
Mining Reclamation and Enforcement, U.S. Department of the Interior,
1951 Constitution Avenue NW., Room 222, Washington, DC 20240.
Telephone: 202-208-2860.
SUPPLEMENTARY INFORMATION:
I. Background Information
II. Discussion of the Proposed Rule
A. General
B. Processing Fee
C. Annual Fixed Fee
III. Public Comment Procedures and Information
IV. Procedural Matters and Required Determinations
I. Background Information
Why is OSM revising the regulations?
In an effort to promote fiscal responsibility, OSM (also referred
to as ``we'' and ``our'') has undertaken a comprehensive review of the
costs it takes to run its programs. As part of this assessment, we
identified the need to update our regulations related to the permit
application and other fees that we collect from the coal industry to
reflect our costs more accurately.
We last promulgated regulations related to fee collections over 20
years ago, in 1990, 55 FR 29536 (July 19, 1990). Pursuant to those
regulations, we collect only approximately 2 percent of the costs that
it takes us to perform permit reviews, and we do not collect any fees,
other than civil penalties, for our permit administration and
enforcement costs.
This rulemaking would allow us to better implement SMCRA and other
policies and requirements with regard to fees and cost recovery for
services rendered to regulated industries. Since our last rulemaking,
the Office of Management and Budget (OMB) has revised Circular No. A-25
relating to ``fees assessed for Government services and for sale or use
of Government goods or resources.'' 58 FR 38144 (adopted 1959; revised
July 15, 1993), available at http://www.whitehouse.gov/omb/circulars_a025. In addition, under the Department of the Interior's (Interior's)
implementing policy, OSM is required to charge fees for services that
provide special benefits or privileges to an identifiable non-Federal
recipient above and beyond those which accrue to the public at large.
See 330 Departmental Manual 1.3A and Department of the Interior
Accounting Handbook at 6-4, available at http://www.doi.gov/pfm/handbooks/accounting.html.
In addition, implementation of this proposed rule would shift a
significant portion of the financial costs for reviewing,
administering, and enforcing permits from the general public to the
identifiable beneficiary--the permit applicant or existing permittee or
operator.\1\ It would also reduce an indirect taxpayer-funded subsidy
to applicants, permittees, and operators of surface coal mining and
reclamation operations within our regulatory jurisdiction because these
services are currently fully funded through annual discretionary
appropriations.
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\1\ The operator of a surface coal mining and reclamation
operation governed by the initial program regulations is sometimes
referred to in this preamble as the ``permittee'' and the holder of
a ``permit,'' despite the lack of the type of permit required under
the permanent regulatory program. We would intend for these
operators to be subject to the new cost recovery requirements.
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What laws authorize OSM to collect fees?
We have specific authority to collect fees in jurisdictions where
we are the regulatory authority--i.e., States and
[[Page 20395]]
Tribes that have not obtained approval to run their own regulatory
program. Section 507(a) of SMCRA (30 U.S.C. 1257) states that--
Each application for a surface coal mining and reclamation
permit pursuant to an approved State program or a Federal program
under the provisions of this Act shall be accompanied by a fee as
determined by the regulatory authority. Such fee may be less than
but shall not exceed the actual or anticipated cost of reviewing,
administering, and enforcing such permit issued pursuant to a State
or Federal program. The regulatory authority may develop procedures
so as to enable the cost of the fee to be paid over the term of the
permit.
This provision applies to all States in which we are the regulatory
authority: currently Tennessee and Washington. Likewise, pursuant to
section 710(d) of SMCRA (30 U.S.C. 1300(d)), which refers specifically
to section 507, we have authority to collect fees on surface coal
mining operations on Indian lands for which no Tribal regulatory
program has been approved pursuant to section 710(j) of SMCRA:
currently, surface coal mining and reclamation operations are located
on lands of the Crow Tribe, the Hopi Tribe, the Ute Mountain Ute Tribe,
and the Navajo Nation.
Additional authority for cost recovery is provided by the
Independent Offices Appropriations Act of 1952 (IOAA), as amended, 31
U.S.C. 9701, which provides generally for cost recovery by Federal
agencies. The IOAA expresses the intent that services provided by
agencies should be ``self-sustaining to the extent possible,'' 31
U.S.C. 9701(a), and authorizes agency heads to ``prescribe regulations
establishing the charge for a service or thing of value provided by the
agency.'' 31 U.S.C. 9701(b).
What policy documents govern cost recovery or collecting fees?
Executive Branch policy on cost recovery is set out in OMB Circular
No. A-25. It establishes Federal policy regarding user charges under
the IOAA. It also ``provides guidance to agencies regarding their
assessment of user charges under other statutes.'' In general, section
6 of the Circular provides: ``A user charge * * * will be assessed
against each identifiable recipient for special benefits derived from
Federal activities beyond those received by the general public.'' This
charge is designed ``to recover the full cost to the Federal Government
for providing the special benefit, or the market price.'' Interior and
its bureaus have adopted OMB's policy as set forth in section 6 of
Circular A-25. See Department of the Interior Accounting Handbook at
6.4.2.
How did we solicit public participation for the development of the
rule?
As part of our comprehensive review, we identified 89 specific
stakeholders who might be affected by this rule or might have an
interest in this rule. The stakeholders include coal mining operators,
environmental groups, government agencies, and municipalities located
in the States of Tennessee, Washington, and on Indian lands where OSM
is the regulatory authority. On March 2, 2012, we asked for their
feedback by sending them an outreach letter that summarized some
concepts that we were considering regarding the restructuring of our
permit fees. We received 13 responses from this effort. Nine responses
came from the coal industry, one was from a Tribal government, one was
from an environmental organization, and two were from private citizens.
In general, the coal mining industry objected to any provisions that
would increase their mining costs. The environmental organization and
citizens supported the rule, and the Tribal government raised issues
concerning costs and applicability. We reviewed and considered these
responses as we developed this proposed rule.
In addition, OSM considered comments we received through
consultation and coordination with the impacted Indian Tribal
governments. This consultation is described in greater detail below in
the discussion of Executive Order 13175 under IV. Procedural Matters.
How did OSM determine which of its services should be recovered through
fees?
Section 507(a) of SMRCA provides the authority to charge fees equal
to or less than the actual or anticipated costs for reviewing,
administering, and enforcing surface coal mining and reclamation
permits. Given this broad authority, we reviewed the specific
activities and work that we perform with regard to (1) Reviewing, (2)
administering, and (3) enforcing permits. Included within our permit
review responsibilities are activities related to the processing of new
permit applications, requests to modify or revise existing permits, the
required mid-term review of the permit, permit renewals, and the
transfer, assignment, or sale of rights to an existing permit. We also
recognize that there could be irregular, non-routine costs associated
with applications or other actions that OSM might require in 30 CFR
Chapter VII now or in the future. Administration of an existing permit
includes permit file maintenance, the review and analysis of various
periodic monitoring and inspection reports, as well as verification
that bond release requirements are met. Our inspections of mine sites
are included within our permit enforcement activities.
Once we identified our review, administrative, and enforcement
services and activities, we analyzed the extent to which the activity
conveyed a benefit to an identifiable recipient, such as a permit
applicant or existing permit holder, or to the general public. In
keeping with Federal cost recovery policy, we are only proposing fees
for those services and activities that we have identified as conveying
a benefit to an identifiable recipient.
How did OSM analyze its costs for the services it provides to
identifiable recipients?
In October 2009, we began a review of costs associated with
administering our responsibilities for the Federal Program States
(currently Washington and Tennessee) and the Indian Lands Programs. To
facilitate this review and to acquire the best information available,
we enhanced the level of detail captured in our accounting system by
adding the name of the State or Tribe and the permit number to many of
the previously established cost codes. This additional information
allowed us to more accurately capture the costs for each of the
activities and services we provided. The new coding structure began to
be phased-in during April 2010.
After gathering this information, we then performed a cost analysis
of various activities and services using the detailed cost data and
associated accumulated programmatic output data. For example, we
examined our costs for activities that occur infrequently in connection
with a given mining operation, such as the review of a permit
application, as well as for more routine and recurring activities, such
as those associated with administering and enforcing existing permits
(regular inspections would be one example). We then analyzed the
resulting costs, associated cost drivers (i.e., factors that affect the
cost of a task, such as the number of hours it takes to complete an
inspection), and the differing costs for the administration of the
Federal and Indian Land Programs among the regions where OSM is the
regulatory authority.
After reviewing this data, we considered various approaches for
recovering these costs through fees as authorized by SMCRA and the
IOAA.
[[Page 20396]]
We considered many options, including the recovery of actual costs,
average costs, and standard costs through a case-by-case or set fee
rate.
How does the existing rule operate?
Our existing rule is located at 30 CFR 736.25(d) for Federal
Program States and 30 CFR 750.25(d) for Indian lands. Under these
regulations, we only charge a fee on new permit applications, and we do
not collect a fee for the majority of other permit application and
review services that we provide to applicants, permittees, and
operators. This existing fee for permit applications is based on a
fixed fee schedule, which, in sum, assesses nationwide fees at
significant stages of the review process for new permit applications.
Specifically, under the existing regulations, we charge a flat $250 for
our administrative completeness review, $1,350 for our technical
review, and $2,000 for our issuance of decisional documents. In
addition, we currently assess a nationwide declining graduated permit
application fee based on the acreage of the disturbed area within the
proposed permit boundaries:
First 1,000 acres--$13.50/acre
Second 1,000 acres--$6.00/acre
Third 1,000 acres--$4.00/acre
Additional acres--$3.00/acre
As previously stated, the existing fee neither recovers the actual
costs for our permit review nor addresses the recovery of our ongoing
permit administration or enforcement services.
III. Discussion of the Proposed Rule
A. General
How are the proposed fees different from the existing fees?
The proposed rule would overhaul the way we calculate fees for
permitting activities. In addition to restructuring the fees we charge
for new permit applications, the proposed rule would include fees for a
broader range of permitting activities and services. The fee for
permitting activities would not use a fee schedule but instead would be
based on actual costs that we would calculate on a case-by-case basis.
The proposed rule also would establish an annual fixed fee to
recover a portion of our yearly permit administration and enforcement
services. The annual fixed fee for each permit would be determined by
four factors--the geographic region; type of permit operation (i.e.,
whether a permit is for a mine site or support facility); mine site
acreage; and the required frequency of inspections as determined by the
permit's phase of bond release or by special situations. Special
situations consist of operations with atypical inspection requirements,
such as surface coal mining and reclamation operations governed by the
initial program regulations or permits that are inactive as defined in
30 CFR 842.11(c)(2)(iii), which includes sites that have achieved Phase
II bond release or that are in temporary cessation of mining
operations. The annual fixed fee would account for the number of
mandated annual inspections, including the time for review, travel,
inspection and reporting, as well as indirect costs. As proposed, these
fees are designed so that OSM would not exceed its actual costs for
providing review and administration, and engaging in enforcement
activities and services. Fees would be reviewed and adjusted on a
periodic basis.
What kind of fees would this rule establish?
Our proposed rule would eliminate the current fixed fee schedule
and replace it with (1) a processing fee that is determined on a case-
by-case basis for the review and approval of all permit application
services and (2) an annual fixed fee, which is designed to recover the
costs of OSM's recurring permit administration and permit inspection
services. These fees would cover our activities and services in Federal
Program States and on Indian lands where OSM is the regulatory
authority; however, these fees would also be applicable to any lands
for which OSM becomes the regulatory authority pursuant to an action
under Part 733 of our regulations (i.e., when OSM takes over all or
part of a State program).
Our proposed processing fee rule would be located in a new Part
737. Under the rule, in Federal Program States and on Indian lands
where OSM is the regulatory authority, the processing fee would be paid
by (1) any applicant for a permit to conduct surface coal mining and
reclamation operations, a permit renewal or revision, a transfer,
assignment or sale of rights of an existing permit, or any new
application or action that OSM might require to be submitted in 30 CFR
Chapter VII as a result of possible future rulemaking, and (2)
permittees and operators that undergo the required mid-term permit
review. In addition, these fees would be paid on applications for coal
exploration permits under 30 CFR 772.12. Fees would not be required for
notices of intention to explore as described in 30 CFR 772.11 because
these notices typically require much less processing time than coal
exploration permits. For services other than notices of intention to
explore, we would calculate the processing fee for services on a case-
by-case basis by determining our actual costs to process the action.
Our proposed annual fixed fee would be located in a new Part 738.
That fee would be paid by any permittee or operator of a surface or
underground coal mining and reclamation operation. The annual fixed fee
for each surface coal mining and reclamation operation would be
determined by four factors--the geographic region; the type of permit
operation (e.g., whether the site is a mine or a support facility); the
mine site acreage; and the required frequency of inspection--whether
the permit is in any phase of bond release or whether any special
situations exist (as with initial program sites or permits that are
inactive). The fee would account for the number of mandated inspections
conducted annually, the variations in inspection hours and travel in
locations east and west of the 100th meridian west longitude, and
indirect costs.\2\ Support facilities include preparation plants,
ancillary facilities (such as haul roads), refuse and/or impoundment
sites, loading facilities and/or tipples, and stockpiles. We also
recognize that we still administer some surface coal mining and
reclamation operations under the initial program regulations, and that
these surface coal mining and reclamation operations have different
inspection requirements; therefore, we are providing a separate
category of annual fixed fees for those permits. OSM estimates 10
active surface coal mining and reclamation operations fall into this
category.
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\2\ SMCRA relies on the 100th meridian west longitudinal line to
represent the boundary between the moist eastern United States and
the arid western United States. See, e.g., SMCRA, 30 U.S.C.
1260(b)(5) & 1277(a).
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What happens if OSM substitutes direct federal enforcement or withdraws
approval of all or part of a State program?
Pursuant to 30 CFR 733.12, if the Director determines that (1) the
State has failed to effectively implement, administer, maintain, or
enforce all or part of its approved State program, and (2) the State
has not demonstrated its capability and intent to administer the State
program, the Director can:
a. Substitute direct federal enforcement for all or a portion of
a State program pursuant to Sec. 733.12(g); or
b. Withdraw approval of all or part of a State program and
implement a replacement Federal program pursuant to Sec. 733.12(h).
In the event that OSM does substitute direct federal enforcement or
withdraws
[[Page 20397]]
approval of all or a portion of a State program, all applicants,
operators, and permittees in that State would be required to pay fees
covering our expenses for processing applications and performing other
actions. In other words, the applicants, operators, and permittees
would be responsible for the same costs as any proposed or actual
surface coal mining and reclamation operation located within any other
Federal Program State or on Indian lands where OSM is the regulatory
authority. The collection of this proposed fee would cover the cost of
services provided by OSM associated with assuming the responsibilities
of all or a portion of a State program.
Because OSM can take over part of a State program under Sec.
733.12, OSM's new role might consist only of performing a few
activities that would be subject to cost recovery under the proposed
regulation. For instance, OSM might assume only the bond calculation
function of a State program. In that case, we would calculate the
amount of the bond at the required times in the life of your permit and
recover from the applicant or operator the cost of doing so. Under such
a scenario, the State regulatory authority would continue to perform
all the other permitting activities. In that case, we would charge you
processing fees to cover our actual costs of performing the bond
calculation review. We would only charge you an annual fixed fee if we
were to assume the inspection and enforcement activity for a particular
regulatory authority.
How did OSM determine the proposed fee structures?
First, we examined SMCRA section 507(a) and other relevant statutes
and guidance documents to determine the parameters of our authority to
collect fees. Our overall goals are to establish fees that would be
fair and equitable, would not exceed our actual costs, and would
minimize the administrative burden associated with billing and
collecting the fees.
Second, in order to develop the proposed fee structures, we
reviewed the three permit-related components for which the applicant,
permittee, or operator receives a benefit or service unique to the
operation (i.e., permit review, permit administration, and permit
enforcement), and classified them either as activities and services
with variable costs based on the circumstances, or activities and
services that are similar and routine. In particular, we determined
that permit application processing and other similar review activities
often occur infrequently in connection with any given operation and
that the time required for reviewing these activities varies. For
example, although every new surface coal mining and reclamation
operation requires a permit, the review times and associated processing
costs for applications for a new permit vary widely depending on
factors such as the size of the mine, potential environmental impacts,
complexity of the proposed action, mining method, site topography and
hydrology, and the completeness and accuracy of the application itself.
Other than mid-term permit reviews, these activities are usually
triggered by the applicant or permit holder. Mid-term reviews and
permit revisions and renewals are similarly very site specific and vary
significantly in the amount of time it takes to process them. In
addition, permit revision applications can be submitted during either
the active mining phase or the reclamation phase, which affects our
processing costs. In contrast, some activities and services, such as
performing the review and analysis of various monitoring reports, file
maintenance and conducting inspections of the permitted mine site, are
regular, routine activities and services. Our work relative to these
activities and services largely correlates to the number of required
inspections we conduct each year, the geographic region, the type of
operation we are inspecting, and the permitted acreage.
Based on this analysis, we are proposing an actual cost, case-by-
case processing fee for the activities that occur only occasionally and
that vary significantly in the amount of review required and a
recurring annual fixed fee for activities that are routine and have
similar costs. We believe that this approach would recover the greatest
percentage of our review, administrative, and enforcement costs while
minimizing our administrative burden. This approach also ensures that
the fees do not exceed the actual cost of our work, which is expressly
prohibited by SMCRA.
What OSM costs would be recovered by the proposed processing fee?
We have calculated the proposed fee rates to include the sum of our
direct and indirect costs related to the activities covered in proposed
Sec. 736.25. Direct costs are comprised of the time spent by the
employee or employees who process the permit and other expenses such as
travel and supplies necessary for carrying out each step of an
application. The hourly cost of the employees' time is based on the
employees' salaries and benefits. The cost of travel includes travel
associated with field work and site visits for technical and
programmatic review of applications. Direct costs would vary by permit
because of differences in the technical complexity and skill
requirements of personnel reviewing permits.
Indirect costs include all expenses that are common to all
regulation and technology activities and are assessed at the same rate
in all cases. These costs include centrally paid items such as
telecommunications, rent, utilities, security, as well as bureau
support functions such as human resource services, finance, and
management. We used the general guidance contained on OMB Circular A-25
for determining the activities to include in our indirect cost rate.
Will there be penalties if the processing or annual fixed fee is not
paid on time?
Yes. Under proposed Sec. Sec. 737.18 and 738.14, if the applicant,
permittee, or operator does not pay the fees by the due date specified
in parts 737 and 738, respectively, we would use our authority under
the Debt Collection Act, as amended, (31 U.S.C. 3717) to charge
interest, penalties, and administrative costs related to our fee
collection activities.
In addition, if the annual fixed fee is not paid by the dates
specified in parts 737 and 738, we might also exercise our enforcement
authority under parts 843, 845, and 846, which would generally result
in the issuance of a notice of violation under Sec. 843.12. If the
processing fee is not paid by the date specified in Sec. 737.14, as
discussed below, we would suspend processing the application or other
action until we receive the fee unless doing so would delay corrective
action at the site.
If you are delinquent in paying your annual fixed fee or processing
fee, under the proposed rule, we might enter this violation into the
Applicant/Violator System (AVS). As reflected in the proposed addition
of paragraph (vi) to the definition of ``violation'' contained in 30
CFR 701.5, a violation in the context of permit application information
or permit eligibility requirements of sections 507 and 510(c) of the
Act could include the failure to pay the required processing or annual
fixed fee. Such a violation in the AVS might cause the violator and
associated parties to be ineligible for future permit actions,
including being ineligible to receive AML reclamation contracts, under
30 CFR 773.12 and coordinating state regulatory counterparts. Section
510(c) of SMCRA precludes permitting authorities from issuing a permit
to an
[[Page 20398]]
applicant that owns or controls a mining operation with a current
violation.
Could the proposed OSM consolidation with the Bureau of Land Management
and the Office of Natural Resources Revenue affect this rule?
The Department of the Interior is in the beginning phases of
consolidating certain fee collection functions between OSM and the
Office of Natural Resources Revenue (ONRR). See Secretary of the
Interior Ken Salazar's Secretarial Order No. 3320, signed on April 13,
2012. We do not expect the consolidation efforts between OSM, ONRR, and
the Bureau of Land Management to affect the substance of this
rulemaking; however, it is possible that, at some point, certain
procedural sections of the rule (i.e., the provisions governing where
the fees contained in this rule would need to be sent) might be revised
to reflect the ongoing consolidation efforts.
B. Processing Fee
For what services or actions would OSM assess a processing fee?
Under the proposed rule at Sec. 736.25(a), OSM would charge a
processing fee for the following activities in a Federal Program State
or on Indian lands where OSM is the regulatory authority:
1. A new permit application to conduct surface coal mining and
reclamation operations, including coal exploration permits (but
excluding notices of intention to explore);
2. A revision to an existing permit, whether requested by the
permittee or ordered by OSM;
3. A request to transfer, assign or sell rights to an existing
permit;
4. A mid-term review;
5. A request to renew a permit; and
6. With the exception of bond release applications, any other
action on which OSM may assess fees as specified in 30 CFR Chapter VII.
The processing fee would be charged for the application review
costs that we incur, even if a permit application is ultimately denied.
We are not proposing to charge a processing fee for bond release
applications because a substantial amount of the review time for these
applications consists of inspection of the onsite mine permit
conditions and many of these inspection hours overlap with the required
inspections that are part of the annual fixed fee.
We foresee the possibility that future rulemaking could require the
submission of other applications or actions for us to process. If we do
propose such future rulemaking that requires us to process new actions,
we would discuss in the preamble whether it should be subject to a
processing fee.
Would the applicant know the amount of processing fee at the time the
application is submitted?
As described in proposed Sec. 737.11(a), we would provide the
applicant with a written estimate of the proposed fee and an estimated
processing time before we begin to process the application or other
permitting action.
Would the permittee or operator know the amount of processing fee at
the time the mid-term permit review is started?
Under proposed Sec. 737.11, we would notify you, the permittee or
operator, of the estimated costs of your mid-term permit review when we
are required to begin that review.
How would OSM estimate your processing fee?
First, OSM would estimate the direct costs of processing your
application or other action based on our known range of costs for
reviewing various permitting activities. To produce this estimate, we
would perform a cursory review of your application or other action to
determine its scope and complexity when we receive your application or
when your mid-term review is required. Next, we would determine the
type of staff needed to review and act upon your application or other
action. Using our most recent data for processing similar applications
or other actions, we would estimate the number of hours that we expect
it would take us to complete the review. We would break down this
estimate by discipline (i.e., hydrologist, engineer, reclamation
specialist, etc.) and assign corresponding hourly rate costs. We would
also include any estimated travel costs that we would incur in visiting
the permit application site to verify the site conditions or meet with
others about the permit application or mid-term review.
The cost estimate would not include any costs associated with our
attending any interagency pre-application meetings because we view
these meetings as beneficial and time-saving to everybody, including
the general public, who is involved in the process. Similarly, we would
not include the costs of estimating the processing fee in developing
our estimate of your processing fee.
As described above, a bureau-wide flat indirect cost rate was
calculated based upon our total direct costs for regulatory activities.
After we determine the estimated direct costs to process your
application or conduct a mid-term review, we would use this figure and
apply the indirect cost rate to arrive at your estimated processing
fee. We would use this estimate for billing purposes. As we move
forward in reviewing your application or conducting our mid-term
review, we would re-calculate our costs and periodically provide you
with an updated estimate.
What indirect costs are included in the processing fee?
We used the general guidance contained on OMB Circular A-25 for
determining the indirect costs that are applied to our direct costs.
Indirect costs include centrally paid items such as telecommunications,
rent, utilities, security, as well as bureau support functions such as
human resource services, finance, and management. OSM used a cost
estimation methodology based on activities identified in its Work
Breakdown Structure (WBS) System. WBS provides reasonable managerial
accounts for costs. We used Fiscal Year 2011 as the baseline year for
this rate. We applied the indirect costs identified above to total
regulation and technology costs for the fiscal year yielding a rate of
21 percent. We intend to periodically adjust our indirect cost rate
fees to reflect changes in our indirect costs. We would publish this
revised rate in the Federal Register.
Would the proposed processing fee change how Environmental Impact
Statements (EISs) and Environmental Assessments (EAs) are handled by
OSM?
We would continue our general practice of hiring a consultant to
prepare an EIS when one is required for your permit application, and
the consultant would continue to bill you, the applicant, directly.
However, the costs for OSM's staff time associated with this activity
would be included in our new processing fee. When OSM prepares an EA
for your permit activity, which might also include the preparation of a
finding of no significant impact, we would bill you for our actual
costs to produce these documents.
How would processing fees be billed?
Upon receiving the estimate, pursuant to proposed Sec. 737.13, the
applicant, permittee, or operator would have the option to submit the
estimated fee in total or to submit a partial payment if the processing
time is estimated to be more than six months. Applicants, permittees,
and operators paying the full amount would have to do so within 30
[[Page 20399]]
days of the printed date of our estimate under proposed Sec. 737.14.
Proposed Sec. 737.14 also details when payments would be due from
applicants, permittees, and operators choosing the partial payment
method. Generally, under this proposed provision, the first installment
would be due within 30 days of the estimate and each additional
installment would be billed every six months thereafter.
As detailed in proposed Sec. 737.13(b), the amount of the partial
payment would be calculated by dividing the total estimated fee amount
by the number of six-month periods estimated for our processing. Under
proposed Sec. 737.16, we would generally revise the estimates every
six months and incorporate any adjustments into the next six-month
billing. Thus, if a payment turns out to be more or less than our
processing costs for that same period, the adjustment would be
reflected in a subsequent billing cycle.
Except for mid-term reviews, processing would not normally begin on
your permit application or other action until we receive your first
installment. Regardless of whether the fee is paid in a lump sum or
installments, proposed Sec. 737.14(c) makes clear that the entire fee
would have to be paid before we would issue the final decision document
unless the fee is for a permit revision that is necessary to correct a
violation. According to proposed Sec. 737.18(a), we might begin
processing any permit revisions that are required to correct a
violation before we receive payment. This exception was added because
we do not want to delay corrective action by the permittees.
What happens if the processing fee estimate is more or less than actual
processing costs?
We intend for your final processing fee to reflect our actual costs
of performing the review and preparing a decision document regarding
the permit application (or other action listed in proposed Sec.
736.25(a)). You would not be expected to pay more than our actual
costs. To make sure that you do not pay more than the costs that we
actually incur to process your application or other action, we would
record our actual costs in our financial system. Our financial system
would allow us to capture unique cost accounts that would be
established for each unique permitting action. These cost accounts
would reflect our direct labor and non-labor costs (if applicable).
We would reconcile our estimated costs and actual costs pursuant to
proposed Sec. 737.16. If you are paying by installments, we would
adjust a subsequent installment to make up the difference between the
estimated and actual costs. Once the final amount has been paid and the
decision document issued, if our estimate was greater than our actual
processing costs, we propose to refund the excess amount to you,
without interest. If our estimate was less than our actual processing
costs, we would bill you for the difference; however, we would have to
receive your payment before the issuance of the final decision
document.
Instead of issuing automatic refunds of any amount in excess of our
processing costs, we considered retaining the overage and applying it
to future annual fixed fee or other processing fee costs. However,
current guidance from the Department of the Treasury requires us to
refund all excess monies to which OSM has no claim. For that reason,
and in the interest of administrative efficiency, we decided to propose
the automatic refund.
Would these new regulations increase the time required to obtain or
revise a permit or other action?
We are sensitive to concerns about the creation of regulations that
might extend the time required to obtain or revise a permit or review
another action, and we have drafted this proposed rule to include only
one new process--the cost estimate and billing process. We anticipate
the amount of time required for this process would be minimal. OSM
staff is already required to track the time they spend on specific
categories of work; thus, we have a good basis for providing cost
estimates for different activities and services. Therefore, we do not
believe this regulation would materially increase the amount of time it
would take us to review a permit application or other action, assuming
the processing fees are paid in a timely manner. Moreover, we believe
that this proposed regulation might encourage the submission of more
complete and accurate applications packages, which could have the
effect of decreasing the amount of time we need for review and the
associated cost.
How would the processing fee be applied to services and actions that
osm is already reviewing?
At this time OSM has not determined how best to apply the
processing fee to applications pending review at the time the proposed
rule is finalized. We do not want this rulemaking effort to encourage
applicants to submit incomplete or hastily prepared applications before
the effective date of the final rule in order to avoid the new
processing fees.
Although not specifically reflected in the proposed rule text, we
are considering adding language to the final rule that would waive the
proposed processing fee for applications for (1) all activities other
than new surface coal mining and reclamation operations, permit
renewals, and significant permit revisions that are received by OSM
prior to the effective date of the final rule; and (2) new surface coal
mining and reclamation operations, permit renewals, and significant
permit revisions that are received by OSM prior to the effective date
of the final rule and determined by OSM to be both administratively and
technically complete at the time of submission. Applications for all of
these activities received after the effective date of this rule, those
applications that do not meet the conditions above, and mid-term
reviews that are required after the effective date would be subject to
the new processing fee.
We are considering making this distinction because permit
applications for new surface coal mining and reclamation operations
typically require substantially more hours of review than all other
types of permit applications, and it is important for the applications
for those activities to be technically complete before we can
meaningfully review the application. If we adopt this approach,
applicants that satisfy the criteria for waiver of the new processing
fees for these activities would still be required to pay some fees,
such as an application fee based on the existing regulations, and the
annual fixed fee. These applicants would also be required to pay
processing fees under the new regulations for any future applications.
We would like your comments about this proposed approach or other
ideas about how the revised fee structure should apply to permit
applications already submitted.
C. Annual Fixed Fee
For what services would osm assess an annual fixed fee?
As previously noted, under Sec. 736.27 and Part 738, we propose to
recover our costs for permit administration and permit enforcement
through an annual fixed fee, which would be assessed yearly. When
certain services are performed repeatedly and as expected, a fixed fee
is a good mechanism for recovering those costs and is administratively
efficient. When we assessed our work, we noted that inspections are one
type of routine service that we provide because the minimum number and
types of inspections for assessing compliance of
[[Page 20400]]
permits are set by regulation. Based on an analysis of the records of
previous inspections, we were able to ascertain that certain factors,
such as the type of inspections (full or partial), the geographic area,
and size of the mine site or support facility, all contribute to the
length of time per inspection. In other words, we noticed that mines of
similar size and similar geography require approximately the same
amount of time to complete a particular type of inspection. Because of
the predictable nature of inspections, we believe a fixed fee is
appropriate. This approach is consistent with section 507(a) of SMCRA,
which specifically authorizes us to collect fees for administrative and
enforcement costs and allows these costs to be paid over the term of
the permit. We anticipate the collection of this fee would help us
recover a portion of our activity and service costs related to permit
maintenance, permit administration, and permit inspection.
How would I know how much my annual fixed fee would be?
We have determined that a one-size-fits-all annual fee is
impracticable because our costs to administer and enforce permits can
vary due to a number of factors--primarily related to geography, the
permit acreage for mining operations or permit type for nonmining
operations (i.e., a support facility), the phase of bond release, if
any; and special situations (such as operations governed by the initial
program regulations and permits that are inactive). Thus, in Sec.
738.11(b), we are proposing a table that sets different rates for
surface coal mining and reclamation operations based on those factors.
Operators should be able to identify their annual fixed fee by
consulting this table.
We believe that this table fairly represents our fixed costs for
administering and enforcing these permits because our recurring
inspection and other maintenance activity costs are directly related to
statutory and regulatory requirements that specify criteria for
inspection frequency. For instance, we are required to complete no
fewer than four (4) complete and eight (8) partial inspections each
year on permits that have not achieved Phase II bond release. However,
once a permit achieves Phase II bond release, the frequency of mandated
inspections is reduced to four (4) complete inspections annually. The
lower annual fixed fee rate for permits that have achieved Phase II
bond release acknowledges this reduction in our administrative and
enforcement costs. Likewise, for permits that are inactive or operating
under the initial program regulations, and which have different
inspection requirements, the table identifies a separate rate. We would
not collect annual fixed fees on any permit sites that have been fully
reclaimed as evidenced by Phase III bond release certification.
How did OSM determine the annual fixed fee rates proposed in the table
in Sec. 738.11(b)?
We collected data on the direct historical costs for permit
administration and permit enforcement activities and services that are
captured in our accounting system related to permit maintenance, permit
administration, and permit inspection. We then assigned these costs to
the appropriate inspections in Tennessee, Washington State, and on
Indian lands for sites that were not in a forfeited or abandoned
status. As discussed above, we also treat sites that are inactive, are
governed by our initial program regulations, or have achieved Phase II
bond release differently by applying lower fees to reflect a reduction
in costs from a reduced number of inspections.
In setting the annual fixed fees, we excluded costs associated with
conducting citizen complaint inspections because we recognize these
inspections vary widely in frequency and scope and do not lend
themselves to an annual fixed fee. We also excluded costs associated
with taking enforcement actions, such as the issuance of a cessation
order or a notice of violation, because these are not recurring actions
but instead occur only in connection with specific permits where a
problem is encountered.
We initially considered basing the annual fixed fee solely on the
amount of bonded or disturbed acreage, but rejected that method after a
thorough analysis of our costs and of some of the outreach comments we
received. To ensure that we would not recover more than our actual
costs on any individual permit, we are using a conservative annual
fixed fee based on the geographic region, acreage, and type of
permitted operation (i.e., mining operation or support facility), and
stage of bond release. A permit that achieves Phase II bond release
would be eligible for the reduced annual fee rate once it has been in
this new phase status for an entire billing cycle. Similarly, a permit
that achieves Phase III bond release would no longer have to pay an
annual fee. We would notify the Division of Financial Management when a
permit becomes inactive or when the appropriate bond release occurs. An
adjustment to the annual fixed fee or a refund would be made as
described in proposed Sec. 738.15.
After determining the base figure for our direct costs, we then
applied a 21 percent indirect rate to that base figure in order to
arrive at the final annual fixed fee rates proposed in Sec. 738.11(b).
A discussion of the indirect cost rate can be found in the section
above regarding the processing fee.
What cost methodology did OSM use to determine its direct costs for the
annual fixed fees?
The proposed rates for the annual fixed fees are based upon the
costs that OSM incurs annually for activities directly associated with
ongoing permit administration and enforcement. We considered several
methods for establishing a proposed fee to recoup our annual costs to
administer and enforce permits for surface coal mining and reclamation
operations. First, we considered proposing a flat annual fixed fee for
all permits, regardless of the characteristics of the surface coal
mining and reclamation operation (such as location, size, or phase of
bond release); however, we determined that such an approach would be
inappropriate given that costs vary substantially across permitted
sites. So, we decided to set fees based on several criteria because we
recognize that our administrative and enforcement expenses vary as we
regulate permitted sites ranging from large surface mines spanning tens
of thousands of acres down to small permitted units, such as an
ancillary haul road facilitating nearby mining operations. We also
considered proposing a simple acreage fee but determined that, given
the wide array of permitted sites across geographical areas, such a fee
would not be equitable. Eventually, we settled on the proposed method,
which explicitly recognizes differences in surface coal mining and
reclamation operations based on site attributes, size, and reclamation
status of permitted sites.
We then analyzed data to link the site categories to costs. OSM
maintains an agency-wide database to record, among other things, the
inspection and enforcement time for conducting federal inspections in
States and Tribes. Upon review of this data, we determined that a good
indicator of our costs to administer and enforce the permits was the
time expended by OSM inspectors to service permits annually. We were
able to pull information from our database to review our inspectors'
time for each activity necessary to implement the Federal and Indian
lands program in non-primacy States and Tribes. We specifically looked
at the time it takes
[[Page 20401]]
for each inspection to: (1) Review the permit; (2) travel to and from
the site; (3) inspect the site; and (4) write the report. Our
inspectors use standardized forms to record mining status and
reclamation phases, acres of the permitted site, permit type (permanent
program or interim site), type of mine (surface or underground),
facility type (prep plant, haul road, refuse, loading facility, or
stockpiles), and inspection type (complete or partial).
We also sorted all permits in Federal Program States and on Indian
lands where OSM is the regulatory authority into six physical
categories (described below) and four inspection groups (permits
without Phase II bond release, permits with Phase II bond release,
inactive permits, and initial program operations) based on the minimum
required inspection frequency. The physical categories include support
facilities and five categories based on ranges of permitted acreage--
mines less than 100 acres, mines 100 acres but less than 1,000 acres,
mines 1,000 acres but less than 10,000 acres, mines 10,000 acres but
less than 20,000 acres, and mines 20,000 acres or greater. The range of
site categories reflects the required hours per inspection which varies
substantially between mine types due to the size and complexity of
mines in each geographical area. For example, partial inspections
require nearly twice as much time in Tennessee as similar sized mine
sites west of the 100th meridian west longitude. Mine sites above
10,000 acres do not exist in areas east of the 100th meridian, while
some mines exceed 60,000 acres in areas west of the 100th meridian west
longitude. Another physical category is the location of the permit or
operation, specifically if it is located east or west of the 100th
meridian west longitude. The underground mine acreages we considered
consist only of surface acreage, rather than the affected subsurface
``shadow area,'' which is often larger than the surface footprint. All
of the existent active underground mines presently fall into the
category of mines less than 100 acres. Inspection frequency groups
include permits requiring 12 inspections, permits requiring 4 complete
inspections (for permits achieving Phase II bond release and for
inactive permits), and those requiring only 2 complete inspections
(initial program sites).
For each physical category, we calculated inspection time for both
complete and partial inspections using a statistical mean for
inspection times for both complete and partial inspections. We
recognize that inspection times on a site might vary for a given year
due to the various circumstances of a mining operation or reclamation
process, so we took a three-year average (2009-2011) of hours per
inspection to better represent the time requirements for inspections
performed in each category.
Averages were statistically different across the physical
categories. For example, complete inspections in Tennessee for the
three ascending acreage categories required 5 hours, 11 hours, and 47
hours respectively, while partial inspections for the same acreage
categories required 4 hours, 6 hours, and 10 hours respectively. We
considered creating subcategories within each broad physical category,
but deemed such a division unnecessary because there was a lack of
significant difference in the statistics. For example, the estimated
time required to service permits with permitted acreages falling
between 800 and 1,000 acres was not statistically higher than permits
with acreages falling between 600 and 800 acres. Thus, we determined
that five broad acreage categories were appropriate based on
statistical differences in total hours expended for inspecting the
entirety of each permitted site.
Next, using OSM's inspection and enforcement database to determine
the time required to administer and enforce each of the categories, we
established annual cost estimates for servicing each of these
categories of permits. SMCRA requires a minimum number of annual
inspections, and we used this minimum number to calculate the total
hours needed to maintain a permit annually, even though OSM would
sometimes perform more than the minimum number of inspections on an
individual permit. As an example, our data revealed that at a minimum,
for an active mine in Tennessee with 600 permitted acres (category 2),
we require 92 inspection hours (11 hours for each complete inspection
multiplied by 4 complete inspections annually plus 6 hours for each
partial inspection multiplied by 8 partial inspections annually). When
the minimum number of inspections drops once a mine has obtained Phase
II bond release, the number of inspection hours required would drop to
44 hours (11 hours multiplied by 4 complete inspections annually). We
decided not to include costs associated with time expended due to
enforcement actions, such as follow-up inspections for assessing civil
penalties and reviewing notices of violation. These costs are
unanticipated and specific to an individual permit, and therefore are
not appropriate for inclusion in the annual fixed fee, which is
designed to cover our predictable and recurring costs.
Once we determined the number of required inspection hours, we
could multiply that figure by the standard hourly rate for an
inspector's salary and benefits and average annual travel costs to
perform the required inspections. This sum gives us the direct costs
for administration and enforcement for the various categories reflected
in proposed Sec. 738.11(b). We then applied an indirect cost of 21
percent for all geographical areas to determine the annual permit fee.
We applied the same nationwide indirect fee rate as previously
described in the processing fee section of the SUPPLEMENTARY
INFORMATION, Discussion of The Proposed Rule. Thus, the table in Sec.
738.11(b) includes both our direct and indirect costs.
How would annual fixed fees be billed?
The annual fixed fee would be billed in advance for our permit
administration and enforcement costs. For new permits issued after the
effective date of this rule, we propose to send you a prorated bill for
the period beginning when the permit is issued through the end of the
current fiscal year (September 30) as described in Sec. 738.11(a). For
permits already issued prior to the effective date of this rule, we
propose to send you a prorated bill for the period beginning when the
rule becomes effective through the end of the current fiscal year
(September 30) as described in Sec. 738.11(a). Because initial program
sites, inactive permits, and permits that have achieved Phase 2 bond
release require only two complete annual inspections, their prorated
amount would be determined by the timing of our inspections rather than
the remaining months in the billing year. We would then annually bill
you each year thereafter at the start of each new fiscal year (October
1). However, we recognize that there are many options for billing that
might be more or less convenient for our permittees, such as billing at
the beginning of the calendar year. Alternatively, we could bill on a
quarterly basis (similar to the current AML fee) or a semi-annual
basis. We specifically invite comments as regarding the billing
procedures for the annual fixed fee.
What happens if my permit becomes eligible for a reduced annual fixed
fee rate during the year?
You would have to pay the annual fixed fee in advance for the next
12 months. However, if your operation achieves a phase of bond release
or becomes inactive during the year, you might be eligible for a
reduced annual
[[Page 20402]]
fixed fee. If the event that makes your permit eligible for a reduced
fee occurs within the first 6 months of the billing year, we would
refund a prorated portion of your annual fixed fee, without interest,
as proposed in Sec. 738.15.
Would the annual fixed fees be updated or revised?
Yes. Under proposed Sec. 738.11(c), we intend to periodically
adjust our annual fixed fee to reflect changes in our direct costs and/
or indirect rate. We would publish all such revised fees in the Federal
Register.
III. Public Comment Procedures and Information
How do I submit comments on the proposed rule?
General Guidance
We will review and consider all comments that are timely received,
but the most helpful comments and the ones most likely to influence the
final rule are those that include citations to and analyses of SMCRA,
its legislative history, its implementing regulations, case law, other
pertinent Federal laws or regulations, technical literature or other
relevant publications, or that involve personal experience. Your
comments should reference a specific portion of the proposed rule or
preamble, be confined to issues pertinent to the proposed rule, explain
the reason for any recommended change or objection, and include
supporting data when appropriate.
Please include the Docket ID ``OSM-2012-0003'' at the beginning of
all written comments that are mailed or hand carried to OSM. We will
log all comments that are received prior to the close of the comment
period into the docket for this rulemaking; however, we cannot ensure
that comments received after the close of the comment period (see
DATES) or at locations other than those listed above (see ADDRESSES)
will be included in the docket for this rulemaking or considered in the
development of a final rule.
Procedures for sending comments to the Office of Management and
Budget are described in the Paperwork Reduction Act section of the
Procedural Matters.
Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Public Hearing and Teleconferences
We will hold a public hearing on the proposed rule only if there is
sufficient interest. We will announce the time, date, and address for
any hearing in the Federal Register at least 7 days before the hearing.
If there is only limited interest in a public hearing, we may hold a
teleconference instead and invite those who had expressed an interest
in presenting oral comments. We will place a summary of the public
hearing or teleconference, if held, in the docket for this rulemaking.
If you wish to testify at a hearing please contact the person
listed under FOR FURTHER INFORMATION CONTACT, either orally or in
writing, by 4:30 p.m., Eastern Time, on April 16, 2013. If there is
only limited interest in speaking at a hearing by that date, we will
not hold a hearing and may, instead, offer to hold a teleconference.
IV. Procedural Matters
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The Executive Order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
rule in a manner consistent with these requirements.
The revisions to the existing fee schedule are intended to offset
OSM's costs for processing various permit applications and related
actions, administering those permits over their lifecycle as well as
the costs associated with providing enforcement of the permits. The
proposed fees would be applicable to permits for mining on lands where
regulatory jurisdiction has not been delegated to the States. The
proposed fees would also be applicable to mining on Indian lands where
OSM is the regulatory authority. The primary purpose of this rulemaking
is to charge the costs to review, administer, and enforce surface coal
mining and reclamation permits to those who benefit from obtaining and
operating under the permit, rather than the general public.
The proposed revisions would result in an increase in the costs
placed on coal operators mining in Federal Program States (Tennessee
and Washington) and on Indian lands where OSM is the regulatory
authority. Within the Federal and Indian lands programs, we currently
issue approximately 200 permitting actions per year with less than 5%
currently subject to a fee. We also have inspection and permit
administration responsibilities for over 300 permits that include over
120,000 bonded acres. For all of these activities, the total amount we
currently collect averages $40,000 per year under the existing fee
structure. The fees under the proposed rule would recover a large
portion of the annual $3.1 million for permitting and inspection costs
currently being incurred by OSM and paid using appropriated
(discretionary) funds to finance these activities.
Regulatory Flexibility Act
There are approximately 1086 surface coal mining and reclamation
operations in the United States. This rulemaking would only affect the
surface coal mining and reclamation operations located in Tennessee,
Washington and on Indian lands, which we estimate to be 41 companies--
25 active surface coal mining operations and 16 reclamation operations.
The Small Business Administration uses the North American Industry
Classification System Codes to establish size standards for small
businesses in the coal mining industry. The size standard established
for coal mining is 500 employees or less for each business concern and
associated affiliates. The Mine Safety and Health Administration
indicates that small coal-mining firms comprise over 96% of the 1086
coal-mining firms in the United States. For purposes of this proposed
rule, we are estimating that all 41 surface coal mining and reclamation
operations impacted by this rule would qualify as small business
entities. The actual dollar effect upon each operator would be highly
variable and depend upon the number of permitting actions that each
[[Page 20403]]
operator requests, the geographic region, the size and type of the
mining operation, and the phase of bond release. Although this number
is variable, we have included rough estimates of the minimum and
maximum processing fees under the Paperwork Reduction Act section
below. In addition, the annual fixed fees range from roughly $700 for
an initial program site with less than 100 acres in the East to roughly
$96,000 for a surface coal mining operation with more than 20,000 acres
and without Phase II Bond Release in the West. See proposed 30 CFR
738.11(b).
The Department of the Interior certifies that this rule would not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This conclusion is based on the small number of surface coal mining and
reclamation operators affected by the proposed rule--approximately 4
percent of small surface coal mining and reclamation operations in the
United States--and the graduated fee schedule based on mine size and
facilities.
Small Business Regulatory Enforcement Fairness Act
Based on the cost data previously discussed, this rule is not
considered a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. This rule:
1. Will not have an annual effect on the economy of $100 million.
2. Will not cause a major increase in costs or prices for
consumers, individual industries, federal, State, or local government
agencies, or geographic regions.
3. Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector.
Therefore, a statement containing the information required by the
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.
Paperwork Reduction Act
This rule contains collections of information that require approval
by OMB under 44 U.S.C. 3501 et seq. In accordance with 44 U.S.C.
3507(d), we have submitted the information collection and recordkeeping
requirements of 30 CFR part 737 to the Office of Management and Budget
(OMB) for review and approval. We are planning to establish a new
collection of information for the following activity:
Title: 30 CFR Part 737--Processing Fees for Operations on Land
Where OSM is the Regulatory Authority.
OMB Control Number: 1029-xxxx.
Summary: In an effort to promote fiscal responsibility, OSM has
identified the need to update its regulations related to the permit
application and related fees that we collect from the coal industry to
more accurately reflect our costs. We have revised our Federal and
Indian Lands Program regulations for the purpose of adjusting the
existing permit fees and to assess fees to recover up to our actual
costs for permit administration activities provided to the coal
industry. The primary purpose of this regulation is to charge those who
benefit from obtaining, and operating under, a surface coal mining and
reclamation permit for our costs to review, administer, and enforce
permits instead of passing those costs on to the general public. These
fees are authorized under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA) and the Independent Offices Appropriations Act of
1952. The fees relating to the processing of various categories of
permit applications are considered a burden on the public under the
Paperwork Reduction Act and need OMB approval accordingly.
Bureau Form Number: None.
Frequency of Collection: Once, on occasion.
Respondent's Obligation: Required to obtain or retain a benefit.
Description of Respondents: Coal mine permittees.
Total Annual Responses: 177 permittee responses.
Total Annual Burden Hours: 0 burden hours.
Total Annual Non-Wage Burden Costs: $1,142,069.
Non-wage burden costs are the processing fees which OSM will assess
on a case-by-case basis for various types of permitting activities. The
fees below are based upon a national weighted-average for hours
required for each geographical area to review applications and,
therefore, should not be construed to represent the cost of an
individual permit activity. Costs include the labor costs for Federal
salaries and benefits, and an indirect charge of 21% of direct costs.
(1) New Permits--4 applications x $45,423 in average Federal wage
costs to review the application + 21% indirect costs = $219,848
(rounded) for permit applicant fees. We anticipate minimum Federal wage
costs of $19,318 (including indirect costs) and a maximum of $151,602
(including indirect costs) per new permit application.
(2) Permit Renewals--9 applications x $6,585 in average Federal
wage costs to review the application + 21% indirect costs = $71,712
(rounded) for permit renewals. We anticipate minimum Federal wage costs
of $3,883 (including indirect costs) and a maximum of $74,673
(including indirect costs) per permit renewal application.
(3) Mid-Term Reviews--13 reviews x $7,228 in average Federal wage
costs to review the application + 21% indirect costs = $113,698
(rounded) for mid-term reviews. We anticipate minimum Federal wage
costs of $3,883 (including indirect costs) and a maximum of $74,673
(including indirect costs) per permit renewal application.
(4) Transfer, Sale, or Assignment of Permit Rights--6 applications
x $1,216 in average Federal wage costs to review the application + 21%
indirect costs = $8,826 (rounded) for applications for the transfer,
sale, or assignment of permit rights. We anticipate minimum Federal
wage costs of $552 (including indirect costs) and a maximum of $9,446
(including indirect costs) per transfer, sale, or assignment of permit
rights application.
(5) Exploration Permits--2 applications x $2,821 in average Federal
wage costs to review the application + 21% indirect costs = $6,826
(rounded) for exploration permits. We anticipate minimum Federal wage
costs of $109 (including indirect costs) and a maximum of $12,824
(including indirect costs) per exploration permit application.
(6) Significant Permit Revisions--5 applications x $19,532 in
average Federal wage costs to review the application + 21% indirect
costs = $118,165 (rounded) for significant revisions to permits. We
anticipate minimum Federal wage costs of $670 (including indirect
costs) and a maximum of $74,824 (including indirect costs) per
significant permit revision application.
(7) Non-significant Permit Revisions--151 applications x $3,302 in
average Federal wage costs to review the application + 21% indirect
costs = $602,994 (rounded) for non-significant revisions to permits. We
anticipate minimum Federal wage costs of $331 (including indirect costs
and a maximum of $22,263 (including indirect costs) per non-significant
permit revision application.
[[Page 20404]]
Comments are invited on:
(a) Whether the proposed collection of information is necessary for
SMCRA regulatory authorities to implement their responsibilities,
including whether the information will have practical utility.
(b) The accuracy of our estimate of the burden of the proposed
collections of information.
(c) Ways to enhance the quality, utility, and clarity of the
information to be collected.
(d) Ways to minimize the burden of collection on the respondents.
Under the Paperwork Reduction Act, we must obtain OMB approval of
all information and recordkeeping requirements. No person is required
to respond to an information collection request unless the form or
regulation requesting the information has a currently valid OMB control
(clearance) number. OSM is seeking a new OMB control number for the
collection in proposed Part 737, which will appear in Sec. 737.10 once
assigned. To obtain a copy of our information collection clearance
request, contact John A. Trelease at 202-208-2783 or by email at
[email protected]. You may also review the information collection
request at http://www.reginfo.gov/public/do/PRAMain. Follow the Web
site to the Department of the Interior's collections currently under
review by OMB, where you can find the collection being created for this
proposed rulemaking.
By law, OMB must respond to us within 60 days of publication of
this proposed rule, but it may respond as soon as 30 days after
publication. Therefore, to ensure consideration by OMB, you must send
comments regarding these burden estimates or any other aspect of these
information collection and recordkeeping requirements by April 25, 2013
to the Office of Management and Budget, Office of Information and
Regulatory Affairs, Attention: Interior Desk Officer, via email to
[email protected], or via facsimile to (202) 395-5806. Also,
send a copy of your comments to John Trelease, Office of Surface Mining
Reclamation and Enforcement, 1951 Constitution Ave. NW., Room 203 SIB,
Washington, DC 20240, electronically to [email protected], or by
facsimile to (202) 219-3276. You may still send comments on the
proposed rulemaking to us until 4:30 p.m., Eastern Time, on April 30,
2013.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because the rule is covered by the categorical exclusion
listed in the Department of the Interior regulations at 43 CFR
46.210(i). That categorical exclusion covers policies, directives,
regulations and guidelines that are of an administrative, financial,
legal, technical, or procedural nature. We have also determined that
the rule does not involve any of the extraordinary circumstances listed
in 43 CFR 46.215 that would require further analysis under NEPA.
Executive Order 12988--Civil Justice Reform
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rule that is (1) considered significant under
Executive Order 12866, and (2) likely to have a significant adverse
effect on the supply, distribution, or use of energy. This rule is not
expected to have a significant adverse effect on the supply,
distribution, or use of energy. It will have limited effect in the
states of Tennessee and Washington and on those mining on Indian lands.
Further, the rule does not prohibit surface coal mining operations;
therefore, a Statement of Energy Effects is not required.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian Tribes
and have determined that the proposed revisions would not have
substantial direct effects on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes. In
November of 2011, OSM held separate meetings with representatives of
the Crow Tribe, Hopi Tribe and the Navajo Nation to discuss the
proposed rule and obtain their comments. Each of these Indian Tribes/
Nations currently has or anticipates having coal mining activity.
One concern that was expressed was that the proposed rule would put
coal mining on Indian lands at a disadvantage as compared to coal
mining on lands where OSM is not the regulatory authority. We
understand this concern; however, there are already differences in
permitting fees, severance taxes and other taxes that are assessed in
the various States and Indian lands where OSM is the regulatory
authority. Another concern that was expressed was how the proposed rule
would impact Indian lands once the Tribe/Nation assumes either full or
partial primacy. If a Tribe/Nation assumes full primacy, it would
replace OSM as the regulatory authority and the fees in this proposed
rule would no longer be collected by OSM. In that case, the Tribe/
Nation would have authority to set its own fees pursuant to sections
507(a) and 710(j)(1)(B). If a Tribe/Nation assumes only partial
primacy, OSM would still assess fees for the work it does in lieu of
the Tribe/Nation. For example, if a Tribe/Nation decided to assume
responsibility for inspection and enforcement but not permit
processing, OSM would assess and collect the permit processing fee.
The Crow Tribe's ``Ceded Strip'' in Montana represents a unique and
special situation. The United States Department of the Interior and the
State of Montana entered into a Memorandum of Understanding (MOU) on
August 12, 1985, ``to provide for effective regulation of surface coal
mining and reclamation operations * * * on lands on the Crow Ceded
Strip in Montana in a manner that achieves the regulatory purposes of
the Surface Mining Control and Reclamation Act of 1977, fosters State-
Federal cooperation and eliminates unnecessary burdens,
intergovernmental overlap and duplicative regulation.'' Under the terms
of the MOU, the Department of the Interior and Montana agreed to
coordinate the administration of applicable surface mining requirements
in the Crow Ceded Strip. Under this proposed rule, permits and
applications on lands within the Crow Ceded Strip would be subject to
the processing fee and the annual fixed fee for all services OSM
provides because these services provide special benefits or privileges
to an identifiable non-Federal recipient above and beyond those which
accrue to the public at large. Because, pursuant to the MOU, OSM and
Montana share responsibility for the regulation of
[[Page 20405]]
surface coal mining and reclamation operations on the Crow Ceded Strip,
OSM would expect the processing fees it charges to an applicant,
operator, or permittee located on the Crow Ceded Strip to address only
the costs OSM incurs with regard to its regulatory responsibilities
under SMCRA, and not the separate costs that Montana incurs as a result
of its responsibilities under SMCRA and the MOU. Therefore, OSM would
also expect that its processing fees would be lower than the fees that
OSM would charge a comparable operation that is not within those
boundaries. Because, consistent with the MOU, OSM would charge only
those processing and annual fixed fees attributable to the regulatory
functions that OSM actually performs, we do not view the potential
assessment of two sets of fees (Montana's and OSM's) as unnecessary and
duplicative.
Executive Order 12630--Takings
Under the criteria in Executive Order 12630, this rule does not
have significant takings implications; therefore, a takings implication
assessment is not required. This determination is based on the fact
that the rule will not have an impact on the use or value of private
property.
Executive Order 13132--Federalism
This proposed rule does not have Federalism implications because it
only seeks to recover costs incurred by the Federal government for
activities within the exclusive jurisdiction of the Federal
government--e.g., in States that have not assumed primacy. Thus, it
will not have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.''
Data Quality Act
In developing this rule we did not conduct or use a study,
experiment, or survey requiring peer review under the Data Quality Act
(Pub. L. 106-554).
Clarity of These Regulations
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this proposed rule easier to understand, including answers to questions
such as the following:
(1) Are the requirements in the proposed rule clearly stated?
(2) Does the proposed rule contain technical language or jargon
that interferes with its clarity?
(3) Does the format of the proposed rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity?
(4) Would the rule be easier to understand if it were divided into
more but shorter sections (a ``section'' appears in bold type and is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
``Sec. 736.25 Who is required to pay fees?'')
(5) Is the description of the proposed rule in the SUPPLEMENTARY
INFORMATION part of this preamble helpful in understanding the proposed
rule?
(6) What else could we do to make the proposed rule easier to
understand?
Send a copy of any comments that concern how we could make this
proposed rule easier to understand to: Office of Information and
Regulatory Affairs, Department of the Interior, Room 7229, 1849 C
Street NW., Washington, DC 20240. You may also email the comments to
this address: [email protected].
List of Subjects
30 CFR Part 701
Law Enforcement, Surface mining, Underground mining.
30 CFR Part 736
Intergovernmental relations, Surface mining, Underground mining.
30 CFR Part 737
Intergovernmental relations, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
30 CFR Part 738
Intergovernmental relations, Surface mining, Underground mining.
30 CFR Part 750
Indian lands, Intergovernmental relations, Reporting and
recordkeeping requirements, Surface mining.
Dated: March 3, 2013.
Tommy P. Beaudreau,
Principal Deputy Assistant Secretary--Land and Minerals Management.
For the reasons set forth in the preamble, we propose to amend 30
CFR Chapter VII as follows.
PART 701--PERMANENT REGULATORY PROGRAM
0
1. The authority citation for part 701 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. In Sec. 701.5, in the definition for the term ``violation,'' add
paragraph (2)(vi) to read as follows:
Sec. 701.5 Definitions.
* * * * *
Violation * * *
(2) * * *
(vi) a bill or demand letter pertaining to a delinquent processing
fee or annual fixed fee owed under parts 736 and 750 of this chapter.
* * * * *
PART 736--FEDERAL PROGRAM FOR A STATE
0
3. The authority citation for part 736 is revised to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
4. Revise Sec. 736.25 to read as follows:
Sec. 736.25 Who is required to pay fees?
You, the applicant, permittee, or operator of a surface coal mining
and reclamation operation on land where OSM is the regulatory authority
or has substituted federal enforcement under Part 733 of this Chapter,
must pay the fees required by this subchapter if:
(a) You are an applicant for a permit to conduct surface coal
mining and reclamation operations, a permit to conduct coal exploration
(but excluding a written notice of intention to explore under Sec.
772.11), a permit renewal or revision, a transfer, assignment or sale
of rights in an existing permit, or any other action on which OSM may
assess fees as specified in 30 CFR Chapter VII, and we receive your
application on or after [the effective date of this rule]; or
(b) You are a permittee or operator of a surface coal mining and
reclamation operation and we begin to conduct a mid-term review of your
operation after [the effective date of this rule]; or
(c) You are a permittee or operator of a surface coal mining and
reclamation operation and we are required to inspect your operation.
0
5. Add Sec. Sec. 736.26 and 736.27 to read as follows:
Sec. 736.26 What fees must I pay if I am an applicant?
Before we (OSM) begin to process your application for one of the
activities listed in Sec. 736.25(a) or (b), you must pay a processing
fee as set forth in Part 737 of this subchapter.
Sec. 736.27 What fees must I pay if I am a permittee or an operator?
Beginning on [the effective date of this rule], you must pay
(a) a processing fee as set forth in Part 737 of this subchapter
when we conduct a mid-term review of your permit; and
(b) an annual fixed fee as set forth in Part 738 of this
subchapter.
0
6. Add part 737 to subchapter C to read as follows:
[[Page 20406]]
PART 737--PROCESSING FEES FOR OPERATIONS ON LAND WHERE OSM IS THE
REGULATORY AUTHORITY
Sec.
737.1 What does this part do?
737.10 Information collection.
737.11 What happens after I submit a permit application or a mid-
term review is required for my surface coal mining and reclamation
operation?
737.12 How much is the processing fee?
737.13 May I pay the processing fee in installments?
737.14 When must I pay the processing fee?
737.15 What method of payment may I use to pay my fees?
737.16 What if the processing fee estimate is more or less than the
actual processing costs?
737.17 What happens to the processing fees I have paid if I decide
to withdraw my application or other action, or if the application is
denied?
737.18 What happens if I am late paying the processing fee?
Authority: 30 U.S.C. 1201 et seq.
Sec. 737.1 What does this part do?
(a) This part describes the processing fee, including how and when
to pay this fee.
(b) Except for a bond release application under Sec. 800.40, all
applicants for a permit to conduct surface coal mining and reclamation
operations or coal exploration operations (but excluding a written
notice of intention to explore under Sec. 772.11), a permit renewal or
revision, a transfer, assignment or sale of rights in an existing
permit, or any other action on which OSM may assess fees as specified
in 30 CFR Chapter VII are required to pay the processing fee if we
(OSM) receive your application on or after [the effective date of this
rule] involving land where we are the regulatory authority or where we
have substituted federal enforcement under Part 733 of this Chapter.
(c) All operators and permittees of surface coal mining and
reclamation operations are required to pay the processing fee if we are
required to conduct a mid-term review of your permit on or after [the
effective date of this rule] involving land where we are the regulatory
authority or where we have substituted federal enforcement under Part
733 of this Chapter.
Sec. 737.10 Information collection.
The collections of information contained in Part 737 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned control number 1029-XXXX. OSM uses the information
collected in this Part to re-estimate and collect fees imposed on
permit applicants for surface coal mining and reclamation operations
and on operators and permittees when OSM is required to perform a mid-
term review. Respondents are required to respond to obtain a benefit in
accordance with SMCRA. A Federal agency may not conduct or sponsor, and
you are not required to respond to, a collection of information unless
it displays a currently valid OMB control number.
Sec. 737.11 What happens after I submit a permit application or a
mid-term review is required for my surface coal mining and reclamation
operation?
After we receive a permit application or other permitting action
identified in section 736.25(a) and before we begin processing that
application or when a mid-term review of your permit is required, we
will provide you with a written initial estimate of the fee and
processing time.
Sec. 737.12 How much is the processing fee?
(a) We will determine the amount of the processing fee on a case-
by-case basis and provide you with an initial estimate. Our initial
estimate of your processing fee will be an estimate of our costs to
review and process your application or conduct a mid-term review of
your operation and will be based on our costs to review recent, similar
applications and actions. The amount of the fee will consist of:
(1) Our actual direct costs to process the permit application or
other action; and
(2) An applied indirect rate (expressed as a percentage of direct
costs) to recover that portion of our indirect costs associated with
performing the review.
(b) Your final cost will be the sum of the actual costs that we
incurred.
Sec. 737.13 May I pay the processing fee in installments?
Yes. You have the option to either:
(a) Submit the estimated fee in one lump sum; or
(b) If the processing time of your application or other action is
estimated to be more than six months, you may request to pay the
estimated fee in installments. The amount of the partial payment will
be calculated by dividing the total estimated fee amount by the number
of six-month billing periods estimated for our processing.
Sec. 737.14 When must I pay the processing fee?
(a) You must make full payment or the first installment of your
payment, if applicable, within 30 days of the date of the initial
estimate.
(b) If you are paying the processing fee in installments, we will
bill you for the second installment and all future installments within
10 days following the end of each six-month period while we are
processing your application or other action. We must receive payment
within 30 days of the billing date on your invoice.
(c) You must pay the entire fee before we will issue the final
decision document. However, if you are revising your permit to remedy a
violation, we may postpone the deadline for your payment of the fee as
necessary to avoid causing a delay in your corrective action.
Sec. 737.15 What method of payment may I use to pay my fees?
All fees due must be submitted to us in the form of an electronic
funds transfer (EFT) or a certified check, bank draft or money order
payable to the Office of Surface Mining. A bank draft is a check, draft
or other order for payment of money drawn by an authorized officer of
the bank.
Sec. 737.16 What if the processing fee estimate is more or less than
the actual processing costs?
(a) If you are paying your processing fee in installments, we will
generally re-estimate the fee every 6 months once processing has begun.
If our actual costs to process your application or other action are
higher or lower than the amount that you paid, we will adjust the
amount of a subsequent billing cycle to reflect this difference.
(b) If you paid the full amount of the fee estimate and our actual
processing costs are more than the amount paid, OSM will notify you
that the costs are expected to be higher and provide you with a revised
estimate. If you do not pay the additional fees as required, we may
stop processing your application or other action until we receive
payment, unless, in our discretion, we decide it is in the public
interest to continue to process your application or other action.
(c) If our actual processing costs are less than the processing fee
that you have paid, we will refund any fees to you that were not used
after issuance of the final decision document. No interest will be paid
on refunded fees.
Sec. 737.17 What happens to the processing fees I have paid if I
decide to withdraw my application or other action, or if the
application is denied?
Except for mid-term reviews, if you decide to withdraw your
application or other action, you must notify us in writing, and we will
stop processing your application or other action and refund any moneys
that you paid in
[[Page 20407]]
excess of our processing costs to date. No interest will be paid on
refunded fees. If we ultimately deny your application, you will
nevertheless still be responsible for the costs that we incurred in
reviewing and processing your application.
Sec. 737.18 What happens if I am late paying the processing fee?
(a) Except for mid-term reviews, processing will not normally begin
on your application or other action until we receive your required
payment; however, if you submit a permit revision application to remedy
a violation, depending on the specific circumstances, we may begin to
process your permit revision application before we receive your
processing fee to avoid causing a delay in your corrective action.
(b) If you are eligible and choose to pay in installments under
Sec. 737.13(b) and you are late paying your six-month processing fee,
we will suspend further work on your application or other action,
except mid-term reviews, until we receive payment.
(c) All late payments will be subject to interest, penalties, and
administrative charges as provided in the Debt Collection Act of 1982,
as amended, and 31 CFR 901.9. The failure to make a timely payment of
this fee constitutes a violation that will be entered into the
Applicant/Violator System.
0
7. Add part 738 to subchapter C to read as follows:
PART 738--ANNUAL FIXED FEES FOR OPERATIONS ON LAND WHERE OSM IS THE
REGULATORY AUTHORITY
Sec.
738.1 What does this part do?
738.11 How much is the annual fixed fee?
738.12 When is the payment for the annual fixed fee due?
738.13 What method of payment may I use to pay my fees?
738.14 What happens if I am late paying the annual fixed fee?
738.15 What happens if my permit achieves a subsequent phase of bond
release or becomes inactive after I have paid my annual fixed fee
rate for the year?
738.16 How will my prorated bill for my existent permit be
determined?
Authority: 30 U.S.C. 1201 et seq.
Sec. 738.1 What does this part do?
This part informs you, the permittee or operator of a surface coal
mining and reclamation operation, of the fee schedule for the annual
fixed fee and how and when to pay this fee. It applies to operations on
land where we (OSM) are the regulatory authority or where we have
substituted federal enforcement under Part 733 of this Chapter.
Sec. 738.11 How much is the annual fixed fee?
(a) The table in paragraph (b) of this section sets the annual
fixed fee rate, which is based on the geographic region; the permit
acreage and type of operation; the permit's phase of bond release, if
any; and special situations (such as initial program sites and permits
that are inactive). The table contains separate rates applicable to
surface coal mining and reclamation operations located east and west of
the 100th meridian west longitude. The table identifies two different
types of permitted operations: support facilities and surface/
underground mines. Support facilities include preparation plants,
ancillary facilities (such as haul roads), refuse and/or impoundment
sites, loading facilities and/or tipples, and stockpiles.
(b) Annual Fixed Fee Table (in dollars):
--------------------------------------------------------------------------------------------------------------------------------------------------------
Surface coal mines (including underground mines)
-----------------------------------------------------------------------------------------------
>=100 to
=1,000 to >=10,000 to >=20,000
Support Permitted Permitted <10,000 <20,000 Permitted
facilities acres acres Permitted Permitted acres
(dollars) acres acres
--------------------------------------------------------------------------------------------------------------------------------------------------------
Areas East of the 100th Meridian West Longitude:
Permit Without Phase II Bond Release................ 3,100 3,300 5,900 18,000 na na
Permit With Phase II Bond Release................... 1,300 1,400 2,900 13,000 na na
Permit Inactive..................................... 1,300 1,400 2,900 1,300 na na
Initial Program Operations.......................... na 700 1,450 na na na
Areas West of the 100th Meridian West Longitude:
Permit Without Phase II Bond Release................ 8,600 na 8,300 17,000 26,000 96,000
Permit With Phase II Bond Release................... 2,800 na 3,300 7,900 13,000 72,000
Permit Inactive..................................... 2,800 na 3,300 7,900 13,000 72,000
Initial Program Operations.......................... 1,400 2,000 na 3,950 na na
--------------------------------------------------------------------------------------------------------------------------------------------------------
For initial program operations, the permit fee relates to the site acreage.
Fees include 21% percent overhead.
na = no permits available in these categories.
(c) We will periodically adjust the annual fixed fees to reflect
changes in our direct costs and indirect rates. The revised annual
fixed fee rates will be published in the Federal Register and will take
effect at the start of the next fiscal year when new annual bills are
sent.
Sec. 738.12 When is payment of the annual fixed fee due?
We will bill you on an annual basis in advance of administering and
enforcing your permit for the next fiscal year. Existing permittees
must pay a prorated bill for the period beginning on the effective date
of the rule through the end of the current fiscal year (September 30).
Similarly, new permits awarded after the effective date of this rule
must pay a prorated bill for the period beginning on the date the
permit was issued through the end of the current fiscal year (September
30). Thereafter, all annual bills will be sent at the start of each new
fiscal year (October 1). We must receive payment for your annual fixed
fee within 30 days of the billing date on your invoice.
[[Page 20408]]
Sec. 738.13 What method of payment may I use to pay my fees?
All fees due must be submitted to us in the form of an electronic
funds transfer (EFT) or a certified check, bank draft or money order
payable to Office of Surface Mining. A bank draft is a check, draft or
other order for payment of money drawn by an authorized officer of the
bank.
Sec. 738.14 What happens if I am late paying the annual fixed fee?
If you are late paying the annual fixed fee, we may take any
enforcement action necessary to comply with parts 843, 845, and 846 of
this chapter. In addition, late payments will be subject to interest,
penalties, and administrative charges as provided in the Debt
Collection Act of 1982, as amended, and 31 CFR 901.9. The failure to
make a timely payment of this fee constitutes a violation that will be
entered into the Applicant/Violator System.
Sec. 738.15 What happens if my permit achieves a subsequent phase of
bond release or becomes inactive after I have paid my annual fixed fee
rate for the year?
(a) If your permit or operation achieves a subsequent phase of bond
release or becomes inactive during the year after you have paid your
annual fixed fee, you are eligible for a reduction of your annual fixed
fee and you may be eligible for a partial refund of the annual fixed
fee.
(b) You are eligible for a partial refund of your annual fixed
fees, if:
(1) Your permit completes a phase of bond release within the first
6 months of the billing year; or
(2) Your permit or operation is inactive for 12 or more continuous
months.
(c) We will prorate the amount of your refund based on the
effective date of the event that makes your permit or operation
eligible for the reduced annual fixed fee rate, whichever is later.
(d) Your partial refund will be credited to your next annual bill
unless you request a refund check in writing.
Sec. 738.16 How will my prorated bill for my existent permit be
determined?
Once this proposed rule becomes effective, we will send you a
prorated annual fixed fee bill for the remainder of the billing year.
For sites where we are required to annually conduct 4 complete
inspections and 8 partial inspections, your prorated bill will be
determined by the number of remaining months in the billing year. For
sites that require only two complete annual inspections, their amount
will be determined by the timing of our inspections rather than the
remaining months in the billing year.
PART 750--REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION
OPERATIONS ON INDIAN LANDS
0
8. The authority citation for part 750 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
9. Revise Sec. 750.25 to read as follows:
Sec. 750.25 Who is required to pay fees?
You, the applicant, permittee, or operator of a surface coal mining
and reclamation operation on Indian lands for which OSM is the
regulatory authority, must pay the fees required by parts 737 and 738
of this chapter if:
(a) You are an applicant for a permit to conduct surface coal
mining and reclamation operations, coal exploration (but not a notice
of intention to explore), a permit renewal or revision, a transfer,
assignment or sale of rights in an existing permit, or any other action
on which OSM may assess fees as specified in 30 CFR Chapter VII, and we
receive your application on or after [the effective date of this rule];
or
(b) You are a permittee or operator of a surface coal mining and
reclamation operation and we begin to conduct a mid-term review of your
operation after [the effective date of this rule]; or
(c) You are a permittee or operator of a surface coal mining and
reclamation operation and we are required to inspect your operation.
10. Add Sec. Sec. 750.26 and 750.27 to read as follows:
Sec. 750.26 What fees must I pay if I am an applicant?
Before we (OSM) begin to process your application for one of the
activities listed in Sec. 750.25(a), you must pay a processing fee as
set forth in Part 737 of this subchapter.
Sec. 750.27 What fees must I pay if I am a permittee or an operator?
Beginning on [the effective date of this rule], you must pay
(a) a processing fee as set forth in Part 737 of this chapter when
we conduct a mid-term review of your permit; and
(b) an annual fixed fee as set forth in Part 738 of this chapter.
[FR Doc. 2013-06950 Filed 3-25-13; 8:45 am]
Editorial Note: FR Doc. 2013-6950 which was originally published
on pages 18430-18444 in the issue of Tuesday, March 26, 2013 is
being republished in its entirety in the issue of Thursday, April 4,
2013 because of editing errors.
[FR Doc. R1-2013-06950 Filed 4-3-13; 8:45 am]
BILLING CODE 1505-01-D
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.