Coal Production Fees and Fee Allocation; Republication

Part III

Department of the Interior

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Office of Surface Mining Reclamation and Enforcement

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30 CFR Parts 870 and 872

Coal Production Fees and Fee Allocation; Proposed Rulemaking;

Republication

Federal Register / Vol. 69, No. 183 / Wednesday, September 22, 2004 /

Proposed Rules

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 870 and 872

RIN 1029-AC47

Coal Production Fees and Fee Allocation; Republication

Editorial Note: Federal Register Proposed Rule document 04-20998

was published originally in the Federal Register of Friday,

September 17, 2004 at 69 FR 56132. In the paper edition of the

September 17 issue, page 56132 appeared as a blank page, due to a

technical malfunction. The online edition of the Federal Register

was not affected. A complete version of the document appears on page

56132 in both the HTML and PDF versions posted online on GPO Access

(http://www.gpoaccess.gov/fr/index.html). The corrected document is

republished in its entirety.

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule.

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SUMMARY: This rule sets forth the criteria and procedures that we are

proposing to use to establish fees under the abandoned mine reclamation

program provisions of the Surface Mining Control and Reclamation Act of

1977 (SMCRA or the Act). The fixed-rate fees established under SMCRA

expire September 30, 2004. However, the Act requires that, for coal

produced after that date, fees be established to continue to provide

for transfers from the Abandoned Mine Reclamation Fund (the AML Fund or

the Fund) to the Combined Benefit Fund (the Combined Fund or CBF). This

proposed rule would implement that requirement in part. We are also

publishing a final rule in today's Federal Register that mirrors the

fee establishment criteria and procedures in this proposed rule and

establishes a fee for the fiscal year beginning October 1, 2004.

Comments received on this proposed rule will assist us in determining

whether to modify that final rule. We are also proposing to revise our

regulations governing allocation and disposition of the fees collected

and of other AML Fund income.

DATES: Electronic or written comments: We will accept written comments

on the proposed rule until 4:30 p.m., Eastern time, on or by November

16, 2004.

Public hearing: If you wish to testify at a public hearing, you

must submit a request on or before 4:30 p.m., eastern time, on October

18, 2004. We 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. If you are a

disabled individual who needs special accommodation to attend a public

hearing, please contact the person listed under FOR FURTHER INFORMATION

CONTACT.

ADDRESSES: If you wish to comment on this proposed rule, you may submit

your comments by any of the following methods to the address indicated:

E-mail: [email protected]. Please include docket number

1029-AC47 in the subject line of the message.

Mail/Hand-Delivery/Courier: Office of Surface Mining

Reclamation and Enforcement, Administrative Record, Room 210, 1951

Constitution Avenue, NW., Washington, DC 20240. Please identify the

comments as pertaining to docket number 1029-AC47.

Federal e-Rulemaking Portal: http://www.regulations.gov.

Follow the instructions provided at http://www.regulations.gov under

the ``How to Comment'' heading for this rule.

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 are disabled and require special accommodation to

attend a public hearing, please contact the person listed under FOR

FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Dennis Rice, Office of Surface Mining

Reclamation and Enforcement, 1951 Constitution Avenue, NW., Washington,

DC 20240. Telephone: (202) 208-2829. E-mail address: [email protected].

You will find additional information concerning OSM, fees on coal

production, the Abandoned Mine Reclamation Fund, and abandoned mine

reclamation in general on our home page at http://www.osmre.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background information

A. What Is the History of the SMCRA Fee on Coal Production?

B. What Is the Combined Benefit Fund?

C. Why Do We Transfer Monies From the AML Fund to the CBF and

How Do We Determine the Amount To Transfer?

II. How Do We Propose To Determine the Total Amount of Fees To

Collect Each Year?

III. How Are We Proposing To Revise 30 CFR Part 870?

IV. What Alternatives Did We Consider in Developing the Proposed

Changes to 30 CFR Part 870?

V. What Is the Rationale for the Cap on Annual Transfers to the CBF?

VI. What Would the Fees Be Under This Proposed Rule for Coal

Produced After September 30, 2004?

VII. How Would the Fees Collected for Coal Produced After September

30, 2004, Be Used?

VIII. How Else Are We Proposing To Revise the AML Fund Rules in 30

CFR 872.11?

IX. Why Are We Publishing a Final Rule at the Same Time as This

Proposed Rule?

X. How Do I Submit Comments on the Proposed Rule?

XI. Procedural Matters

I. Background Information

A. What Is the History of the SMCRA Fee on Coal Production?

Title IV SMCRA created an abandoned mine land reclamation program

funded by a fee, known as the reclamation fee, assessed on each ton of

coal produced for sale, transfer, or use (``produced''). The fees

collected are placed in the AML Fund. We, either directly or through

grants to States and Indian tribes with approved AML reclamation plans

under SMCRA, use appropriations from the Fund primarily to reclaim

lands and waters adversely impacted by mining conducted before the

enactment of SMCRA and to mitigate the adverse impacts of mining on

individuals and communities. In addition, subject to appropriation, up

to $10 million per year may be used for the small operator assistance

program under section 507(c) of SMCRA, which pays for certain costs

involved with the preparation of coal mining permit applications under

Title V of SMCRA. Also, since Fiscal Year (FY) 1996, an amount equal to

the interest earned by and paid to the Fund has been available for

direct transfer to the United Mine Workers of America Combined Benefit

Fund to defray the cost of providing health care benefits for certain

retired coal miners and their dependents.

Section 402(a) of SMCRA and existing 30 CFR 870.13 fix the

reclamation fee at 35 cents per ton (or 10 percent of the value of the

coal, whichever is less) for surface-mined coal other than lignite; 15

cents per ton (or 10 percent of the value of the coal, whichever is

less) for coal from underground mines; and 10 cents per ton (or 2

percent of the value of the coal, whichever is less) for lignite. Under

section 402(b) of SMCRA, our authority to collect fees at those rates

will expire with respect to coal produced after September 30, 2004, as

will our authority to collect fees for AML reclamation purposes.

However, unappropriated monies remaining in the Fund after that date

will remain available for grants to State and tribal AML reclamation

programs and the other purposes for which the AML Fund was established.

[[Page 56909]]

As originally enacted, section 402 of SMCRA authorized collection

of reclamation fees for 15 years following the date of enactment

(August 3, 1977), meaning that our fee collection authority would have

expired August 3, 1992. However, Congress has twice extended that

deadline. As enacted on November 5, 1990, Section 6003(a) of the

Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508, 104 Stat.

1388) extended both the fees and our fee collection authority through

September 30, 1995. Section 6002(c) of that law also required that the

Fund be invested in interest-bearing public debt securities, with the

interest becoming part of the Fund. Section 19143(b) of Title XIX of

the Energy Policy Act of 1992 (Pub. L. 102-486, 106 Stat. 2776, 3056)

subsequently extended the fees and our fee collection authority through

September 30, 2004.

Section 2515 of Title XXV of the Energy Policy Act (106 Stat. 2776,

3113) further amended section 402(b) of SMCRA by adding the requirement

that, after September 30, 2004, ``the fee shall be established at a

rate to continue to provide for the deposit referred to in subsection

(h) [of section 402 of SMCRA].'' See 30 U.S.C. 1232(b). The rule that

we are proposing today would implement this provision of SMCRA by

establishing criteria and procedures for establishment of the fee for

coal produced on or after October 1, 2004.

B. What Is the Combined Benefit Fund?

The Energy Policy Act of 1992 also included provisions known as the

Coal Industry Retiree Health Benefit Act of 1992 (the Coal Act), which

is codified at 26 U.S.C. 9701, et seq. See Public Law 102-486, 106

Stat. 2776, 3036. The Coal Act created the United Mine Workers of

America (UMWA) Combined Fund or CBF by merging two financially troubled

health care plans, the UMWA 1950 Benefit Plan and Trust and the UMWA

1974 Benefit Plan and Trust, effective February 1, 1993. See 26 U.S.C.

9702. The CBF is a private employee benefit trust fund that provides

health care and death benefits to UMWA coal industry retirees and their

dependents and survivors who were both eligible to receive and were

receiving benefits from the 1950 Benefit Plan or the 1974 Benefit Plan

on July 20, 1992. See 26 U.S.C. 9703(f). Most current beneficiaries are

widows and dependents of coal miners. The CBF health insurance plan

provides ``Medigap'' coverage; i.e., it pays for health care expenses

remaining after Medicare and Medicaid reimbursement and covers

prescription drugs.

Under the Coal Act, the Social Security Administration (SSA) has

the duty of assigning retirees and their dependents to former employers

or related companies. See 26 U.S.C. 9706. Coal operators and related

companies pay monthly premiums (also determined by the SSA) to the CBF

to cover the costs of benefits for the beneficiaries assigned to them.

In addition, under 26 U.S.C. 9704(a)(3), those companies must pay a

monthly premium for the health care costs of eligible unassigned

beneficiaries; i.e., those beneficiaries associated with now-defunct

coal operators for which no related company exists or remains in

business. However, as discussed in Part I.C. below, Congress created a

mechanism to wholly or partially offset premium costs for unassigned

beneficiaries by transferring an amount equal to certain interest

earned by the AML Fund to the CBF.

C. Why Do We Transfer Monies From the AML Fund to the CBF and How Do We

Determine the Amount To Transfer?

In paragraphs (a) and (b) of section 19143 of the Energy Policy Act

of 1992, respectively, Congress amended the Internal Revenue Code of

1986 and SMCRA to require that, at the beginning of each fiscal year,

starting with FY 1996, an amount equal to the AML Fund's estimated

interest earnings for that year be transferred to the CBF to help

defray the cost of health care benefits for unassigned beneficiaries.

See section 402(h) of SMCRA (30 U.S.C. 1232(h)) and section 9705(b) of

the Internal Revenue Code (26 U.S.C. 9705(b)). See also Public Law 102-

486, 106 Stat. 3047 and 3056.

Section 9705(b)(2) of the Internal Revenue Code provides that any

amount transferred to the CBF under section 402(h) of SMCRA ``shall be

used to proportionately reduce the unassigned beneficiary premium under

section 9704(a)(3) of each assigned operator for the plan year in which

transferred.'' However, to the extent that these transfers do not fully

cover costs for unassigned beneficiaries, assigned operators remain

obligated to pay the difference under 26 U.S.C. 9704(a)(3) and

(d)(3)(A).

Section 402(h) of SMCRA (30 U.S.C. 1232(h)) states that--

(1) In the case of any fiscal year beginning on or after October

1, 1995, with respect to which fees are required to be paid under

this section, the Secretary shall, as of the beginning of such

fiscal year and before any allocation under subsection (g), make the

transfer provided in paragraph (2).

(2) The Secretary shall transfer from the [AML] fund to the

United Mine Workers of America Combined Benefit Fund established

under section 9702 of the Internal Revenue Code of 1986 for any

fiscal year an amount equal to the sum of--

(A) the amount of interest which the Secretary estimates will be

earned and paid to the Fund during the fiscal year, plus

(B) the amount by which the amount described in subparagraph (A)

is less than $70,000,000.

(3)(A) The aggregate amount which may be transferred under

paragraph (2) for any fiscal year shall not exceed the amount of

expenditures which the trustees of the Combined Fund estimate will

be debited against the unassigned beneficiaries premium account

under section 9704(e) of the Internal Revenue Code of 1986 for the

fiscal year of the Combined Fund in which the transfer is made.

(B) The aggregate amount which may be transferred under

paragraph (2)(B) for all fiscal years shall not exceed an amount

equivalent to all interest earned and paid to the fund after

September 30, 1992, and before October 1, 1995.

(4) If, for any fiscal year, the amount transferred is more or

less than the amount required to be transferred, the Secretary shall

appropriately adjust the amount transferred for the next fiscal

year.

In sum, section 402(h)(2)(A) of SMCRA requires an annual transfer

of estimated interest earnings from the AML Fund to the CBF. Paragraphs

(h)(2)(B) and (3)(B) of section 402 require the transfer of an

additional amount from a reserve (the interest earned on the AML Fund

between FY 1993 and FY 1995) if the estimated interest earnings during

the fiscal year will not cover eligible estimated CBF expenditures for

that year. However, as explained further below, the amounts in the

reserve fund were fully utilized in FY 2003 and no longer are available

to supplement the annual transfer. In addition, the total amount

transferred under paragraphs (h)(2)(A) and (B) for any one year may not

exceed $70 million, as discussed more fully in Part V below.

The section 402(h)(2)(A) transfer is further limited by section

402(h)(3)(A), which precludes the transfer of monies to the CBF in

excess of the CBF's yearly costs for health benefits for unassigned

beneficiaries. However, under a memorandum of understanding between OSM

and the CBF trustees, which was signed on January 19, 2001, the amount

transferred is not limited to estimated costs based on premium amounts

determined by the SSA--it includes all actual health care expenditures

for all unassigned beneficiaries, up to the amount authorized in

section 402(h)(3) of SMCRA (subject to the $70 million cap). This

approach reflects language in the conference report accompanying the FY

2001 appropriations bill for Interior

[[Page 56910]]

and related agencies. Page 200 of that report (H.R. Rep. No. 106-914)

states:

As a general matter, the managers note that it has been the

practice for the amount of the annual interest transfers under

current law to be based on a calculation which multiplies the number

of unassigned beneficiaries by that year's per beneficiary premium

rate established by the Social Security Administration (SSA) with

adjustments made later (normally two years after the initial

transfer) to reflect the Combined Benefit Fund's actual expenditures

for unassigned beneficiaries. This practice has an adverse effect on

the Combined Benefit Fund's cash flow and is contributing to its

financial difficulties. * * * The managers believe that the interest

transfer at the beginning of each fiscal year should be based on the

Combined Benefit Fund trustees' estimate of the year's actual

expenditures for unassigned beneficiaries, which may be adjusted to

the actual amount of those expenditures at a later time if the

initial transfer proves to be either too high or too low. This

approach is completely consistent with the underlying statutory

provision found in section 402(h) of the Surface Mining Control and

Reclamation Act of 1977 which provides that the amount of interest

transferred ``shall not exceed the amount of expenditures that the

trustees of the Combined Fund estimate will be debited against the

unassigned beneficiaries premium account.''

The transfer from the AML Fund to the CBF occurs at the beginning

of the fiscal year based on our estimate of interest the AML Fund will

earn during the fiscal year and the CBF trustees' estimate of their

health care expenditures for unassigned beneficiaries for that year.

After the close of the fiscal year, we adjust the amount of the

transfer to reflect actual interest earnings and CBF expenditures.

There is no statute of limitations on adjustments to the number of

beneficiaries. Therefore, several adjustments to the transfer for a

particular year may be made in following years as figures are refined

(usually as a result of bankruptcies and litigation), provided that the

statutory transfer cap of $70 million for that year has not been

reached. For example, our transfer in FY 2002 included adjustments to

our first transfer in FY 1996.

II. How Do We Propose To Determine the Total Amount of Fees To Collect

Each Year?

As explained above, section 402(b) of SMCRA requires the

establishment of a fee ``to continue to provide for the deposit

referred to in subsection (h)'' of SMCRA. We interpret that language as

requiring establishment of a fee that will generate revenue up to, but

not more than, the amount of net interest that the AML Fund is

anticipated to earn in the coming fiscal year, subject to certain

limitations described in detail below. This interpretation gives

meaning to the section 402(b) requirement that some ``rate'' be

established. Furthermore, this reading construes the phrase ``deposit

referred to subsection (h)'' in section 402(b) to mean only what is

currently provided for in section 402(h) (i.e., the transfer of an

amount of money equal to estimated AML Fund interest earnings subject

to the ``caps'' described below) and nothing more.

The legislative history of paragraphs (b) and (h) of section 402

sheds little light on congressional intent with respect to the amount

of fees to be collected for coal produced after September 30, 2004. The

provision in section 402(b) concerning post-September 30, 2004, fees

appears to have originated in two bills introduced in 1992 in the 102nd

Congress. Those bills, H.R. 4344 and H.R. 776, both included a version

of section 402(h) that would have required an annual transfer of $50

million from the AML Fund to the CBF. However, H.R. 4344 was never

adopted, and the House removed the CBF transfer provisions from H.R.

776 prior to passage. In acting on H.R. 776, the Senate added a

variation of the provisions that the House had removed. However,

instead of authorizing the transfer of $50 million from the AML Fund to

the CBF each year as in the prior House version of section 402(h), the

Senate version authorized transfer only of an amount equal to interest

earned or estimated to be earned by the Fund. See 138 Cong. Rec. 10558,

July 29, 1992. The Senate did not make any conforming changes to

section 402(b). The House subsequently accepted the Senate version

without change and the provisions became law as part of the Energy

Policy Act of 1992.

Thus, the rationale for the fee collection target in section

870.13(b)(2) of the proposed rule that we are publishing today is the

plain language of the statute and the absence of any legislative

history to support a contrary reading. Section 402(b) of SMCRA provides

that, after September 30, 2004, ``the fee shall be established at a

rate to continue to provide for the deposit referred to in subsection

(h).'' Section 402(h) of the Act lists two components of the deposit:

(1) An estimate of the interest that will be earned by and paid to

the AML Fund during the fiscal year (paragraph (h)(2)(A)); and

(2) A ``supplement'' to increase that amount to $70 million if

necessary (paragraph (h)(2)(B)), but with a cap on the total amount of

the supplement for ``all fiscal years'' equal to the interest earned

and paid to the AML Fund from October 1, 1992 to September 30, 1995

(paragraph (h)(3)(B)), and further capped by the needs of the CBF

(paragraph (h)(3)(A)).

The supplement referenced in paragraph (h)(2)(B) is no longer

available because the cap in paragraph (h)(3)(B) has been reached. By

its terms, the cap applies to ``all fiscal years'' without any

limitation. There is nothing in the legislative history to suggest that

in section 402(b) Congress meant to refer only to certain portions of

section 402(h). That is, we have no indication that Congress intended

to continue the supplement in paragraph (h)(2)(B) without regard to the

cap on that supplement in paragraph (h)(3)(B)). Moreover, the cap

resulted in a transfer from the AML Fund to the CBF of only $49.8

million in FY 2004, which was based only on the estimate of interest

that the Fund would earn in FY 2004. There was no supplement provided

to raise that amount because the supplement already was exhausted. It

would be anomalous to suggest that Congress intended for the cap in

paragraph (h)(3)(B) to apply to the transfer in FY 2004 (as it did),

but not in FY 2005, when the plain language of that paragraph applies

the cap to ``all fiscal years.''

In sum, at this time nothing in SMCRA authorizes transfer of any

monies to the CBF in excess of an amount equal to estimated interest

earnings for that year (adjusted in future years to reflect actual

interest earnings). Furthermore, there is no indication in the

legislative history of sections 402(b) and (h) that Congress intended

otherwise.

Therefore, the reference in section 402(b) to ``the deposit

referred to in subsection (h)'' is best read as meaning that the fees

established for coal produced after September 30, 2004, must be

designed to generate an amount of revenue equal to the estimated

interest earnings transferred to the CBF at the beginning of each

fiscal year, with any modifications needed to reflect the true-up

adjustments required by section 402(h)(4).

For the reasons discussed above, we believe that the proposed rule

is a reasonable reconciliation of the statutory language with

congressional intent as evidenced by the legislative history.

III. How Are We Proposing To Revise 30 CFR Part 870?

As discussed in Part IX of this preamble, we are publishing a final

rule in today's Federal Register that adopts the same changes to Part

870 that we are

[[Page 56911]]

proposing in this rule and puts them into effect immediately. However,

we will fully consider all comments that we receive on this proposed

rule. If we determine that changes are needed in response to those

comments, we will issue a new final rule containing the appropriate

modifications. As mentioned in Part IX, we seek comment on whether

those changes should be effective as of October 1, 2004.

We are proposing to revise 30 CFR 870.13 by--

Changing the section heading from ``Fee computations'' to

``Fee rates'';

Redesignating existing paragraphs (a) through (d) as

paragraphs (a)(1) through (4);

Adding a new title and introductory language for paragraph

(a) to clarify that the rates in that paragraph apply only to fees for

coal produced on or before September 30, 2004; and

Adding a new paragraph (b), which would establish criteria

and procedures for use in establishing fees for coal produced after

September 30, 2004.

In addition, in a conforming technical change, we are proposing to

revise 30 CFR 870.12(d) to remove the September 30, 2004, expiration

date for fee payment obligations.

Proposed paragraph 870.13(b) would implement in part the provision

in section 402(b) of SMCRA that requires that, after September 30,

2004, ``the fee shall be established at a rate to continue to provide

for the deposit referred to in subsection (h).'' As discussed in Part

I.C. above, section 402(h) of SMCRA essentially requires the transfer

from the AML Fund to the CBF, at the beginning of each fiscal year, of

an amount equal to estimated AML Fund interest earnings during that

year to defray the cost of health care benefits for the plan's

unassigned beneficiaries. Those transfers effectively are capped at the

estimated AML Fund interest earnings for that year, $70 million, or the

CBF's estimated expenditures for health care benefits for unassigned

beneficiaries for that year, whichever is the smallest amount.

Therefore, effective October 1, 2004, we must determine the fee based

on the amount of the transfer from the AML Fund to the CBF.

We recognize that section 402(h) of SMCRA does not expressly

require adjustments to reflect differences between estimated and actual

AML Fund interest earnings and estimated and actual CBF expenditures

for unassigned beneficiaries. Paragraphs (h)(1), (2), and (3) of

section 402 refer only to the use of estimates when determining the

amount required to be transferred. However, section 402(h)(4) of the

Act provides that, ``[i]f, for any fiscal year, the amount transferred

is more or less than the amount required to be transferred, the

Secretary shall appropriately adjust the amount transferred for the

next fiscal year.'' In our view, that provision essentially requires

that the Secretary adjust the amount transferred to reflect any

difference between the estimates used to determine the transfer amount

at the beginning of the year and actual data for that year, as

determined at a later date. Otherwise, section 402(h)(4) would have no

real meaning, which would conflict with established principles of

statutory construction. We invite comment on whether there is any other

interpretation that would give effective meaning to section 402(h)(4).

If so, we may reconsider adoption of proposed 30 CFR 870.13(b)(2)(ii).

Proposed paragraph 870.13(b)(1) would require us to establish fees

on an annual basis. We selected this frequency because the amount

transferred to the CBF each year will vary. We would publish the fees

for each fiscal year after FY 2005 in the Federal Register at least 30

days before the start of the fiscal year to which the fees would apply.

Although not specified in the rule, we also would provide notice of the

new fees by modifying the Abandoned Mine Land Payer Handbook (http://ismdfmnt5.osmre.gov), revising the OSM-1 form, and issuing Payer

Letters to permittees.

Under the proposed rule, once we publish the fees for a given

fiscal year, they would not change during that year. Later in this

preamble we explain how we would make adjustments for differences

between the estimates (for factors as interest earnings and coal

production) used to establish the fees and actual data once the actual

data becomes available.

Proposed paragraph 870.13(b)(2) of the rule essentially would

require that each year's fee be established to generate an amount of

revenue equal to the amount of estimated AML Fund interest earnings

that will transfer from the AML Fund to the trustees of the CBF at the

beginning of that year under section 402(h) of SMCRA. Consistent with

paragraphs (h)(2)(B) and (h)(3)(A) of section 402 of SMCRA (see Part V

of this preamble), paragraph (b)(2)(i) of the rule would cap the amount

of estimated interest earnings transferred--and hence the total amount

of fee collections needed--at the lesser of either $70 million or the

amount that the trustees of the CBF estimate will be debited against

the unassigned beneficiaries premium account under section 9704(e) of

the Internal Revenue Code of 1986 (26 U.S.C. 9704(e)) for that fiscal

year.

Under proposed section 870.13(b)(2), calculation of the total

amount of fee collections needed would be a three-step process. First,

under proposed paragraph (b)(2)(i), we would estimate the amount that

must be transferred to the CBF at the beginning of that fiscal year. We

would compare the net amount of interest the AML Fund is estimated to

earn during that fiscal year, the most recent estimate from the CBF

trustees of their needs for unassigned beneficiaries for that year, and

the statutory cap of $70 million. The estimated transfer amount would

be the smallest of the three numbers.

The second step, under proposed paragraph (b)(2)(ii), would be to

adjust the estimated transfer amount to account for overcollections or

undercollections in prior years. SMCRA requires us to establish a fee

that will provide for the transfer under section 402(h). As explained

above, the initial transfer to the CBF under that section of the Act is

based on estimates of AML Fund interest earnings and the CBF's needs

for unassigned beneficiaries during that year. After the close of the

fiscal year, the amount of the transfer is adjusted to reflect actual

interest earnings (and, if necessary, actual CBF expenditures) when

that data becomes available. As explained more fully below, any

difference between estimated and actual data would not result in a

revision of the previously established fee for that year. We would

account for any excess fees collected, or any deficiencies, by

adjusting the next fee scheduled to be determined.

For example, if we underestimate interest earnings, we would

transfer the difference to the CBF, provided the CBF needs that amount

for expenditures from the unassigned beneficiary premium account during

that year and the transfer would not exceed the $70 million statutory

cap. We would then need to increase fee collections in the following

year to recover the additional amount transferred. On the other hand,

if we overestimate interest earnings or if the CBF's expenditures were

lower than the original amount transferred, the CBF would refund the

difference and we would need to address the excess amount of fees

collected. However, this requirement would apply only to adjustments

for fiscal years after FY 2004. Therefore, if we determine in FY 2005

that we underestimated FY 2003 interest earnings by $10 million, we

would not include that adjustment in the fee calculation for FY 2006

(i.e., we would not increase the fee collection needs for FY 2006 by

$10 million), although we would send the $10 million to the CBF.

[[Page 56912]]

The third step under proposed paragraph (b)(2)(iii) would be to

adjust the estimated transfer amount to reflect differences between

estimated and actual coal production in prior years. As explained

above, the fee calculation for a fiscal year would essentially be a

fraction. The numerator would be the amount of total fees to be

collected for that fiscal year (with all adjustments), and the

denominator would be based on our estimate of coal production for that

year. If we overestimate production, the calculated per-ton fee would

be too low and we would undercollect for that year. Conversely, if we

underestimate production, the calculated per-ton fee would be too high

and we would overcollect for that year. Therefore, just like when we

adjust the estimated interest and CBF needs to actual in step two, when

we obtain actual production figures for fiscal years after October 1,

2004, we would calculate the fees we overcollected or undercollected

and that number would become an adjustment in the next fee calculation.

We identified two options to remedy fee undercollections and

overcollections. Under the first option, we would recalculate the fee

and have all operators submit amended reports with additional payments

or requests for credit or refund. We find this option impractical for

several reasons. First, it would impose a huge paperwork burden on both

operators and OSM. Second, we often make several adjustments over a

number of years as actual data become available for comparison with the

estimates used to establish the fees. Therefore, multiple supplemental

reports would be required. Third, the adjustments likely would be very

small (fractions of a cent), so the cost to operators and OSM of

accounting for adjustments may exceed the dollar value of the

adjustment. For all these reasons, we propose to reject this option.

Under this proposed rule, we would not change the fee for a given

fiscal year after we publish that fee in the Federal Register.

Instead, we are proposing to adopt the second possible approach to

account for adjustments. Under that approach, we would adjust fee

calculations for future years to account for adjustments to transfers

in prior years. However, we would not adjust the fee calculations for

future years when the transfer adjustments relate to FY 2004 or earlier

fiscal years. Adjustments for transfers in those years would be

inappropriate because the fee was statutorily set for those years.

The following example illustrates how this process would work:

Assume estimated AML Fund interest earnings for FY 2008 are $60 million

and the CBF's estimated unassigned beneficiary needs are $85 million.

Under that scenario, the amount transferred to the CBF would be $60

million. Under paragraph (b)(2)(i) of the proposed rule, that amount

also would be the starting point for our fee calculations for FY 2008.

Assume further that in FY 2006 we overestimate AML Fund interest

earnings by $3 million, which means that fee collections for FY 2006

are $3 million higher than they should have been. To correct this

situation, we would subtract the $3 million overcollection for FY 2006

from the $60 million estimated transfer in FY 2008, thereby reducing

fees collected for that year. Hence, in FY 2008 operators as a group

would recover the $3 million fee overcollection in FY 2006.

If there are multiple adjustments for more than one prior fiscal

year, they all would be incorporated in the next fee calculation. In

addition, if we later find that further adjustments are needed for a

previously adjusted fiscal year, we would account for that adjustment

in the next fee calculation. Thus, returning to the example in the

previous paragraph, if we determine in FY 2008 that FY 2006 interest

was overestimated by $4 million, not $3 million, we would adjust the

next scheduled fiscal year's fee calculation (i.e., FY 2009) by the

additional $1 million.

Finally, if Congress were to specifically appropriate additional

funds for transfer from the AML Fund to the CBF, that appropriation

would not become part of the fee calculation process. Thus, for

example, if, in the FY 2007 appropriations act for the Department of

the Interior, Congress designated a one-time $25 million supplemental

payment to the CBF, we would not include that $25 million in the fee

calculations for FY 2007.

Proposed paragraph 870.13(b)(3) provides that we would determine

per-ton fees after comparing the amount of the estimated transfer to

the CBF (and hence the total amount of fee collections needed) with

projected coal production for that fiscal year. Proposed paragraph

(b)(3)(ii) specifies that the new fees would maintain the same

proportionality among surface-mined coal, coal produced by underground

mining, and lignite as did the fees previously in effect under section

402(a) of SMCRA. In section 402(a) of SMCRA, Congress originally

established lower fees for lignite and for coal produced by underground

methods than it did for non-lignite coal produced by surface mining

methods. According to the legislative history, the lower fees for

underground mining reflect the ``disproportionately high social costs

incurred by underground coal mine operators in meeting responsibilities

under the Coal Mine Safety and Health Act of 1969, as amended.'' H.R.

Rep. No. 94-1445 (1976), at 85. Section 402(b) of SMCRA is silent on

the question of whether this fee differential should continue to apply

to coal produced after September 30, 2004.

After evaluating those factors, we propose to retain the per-ton

fee ratios that have been in place since the enactment of SMCRA.

Therefore, under proposed paragraph (b)(3)(ii), the fee per ton of non-

lignite coal produced by underground methods would be 43 percent of the

fee per ton of non-lignite coal produced by surface methods and the fee

per ton of lignite coal produced would be 29 percent of the fee per ton

of non-lignite coal produced by surface methods. The provision

concerning fees for coal produced by in situ mining methods also would

remain substantively unchanged from the rule governing fees for coal

produced by in situ mining methods before October 1, 2004, in that it

would continue to apply the underground fee to all non-lignite coal

produced by in situ methods and the lignite fee to lignite coal

produced by in situ methods.

IV. What Alternatives Did We Consider in Developing the Proposed

Changes to 30 CFR Part 870?

In developing this proposed rule, we considered and rejected the

following options to implement the provision of section 402(b) of SMCRA

requiring the establishment of a fee for coal produced after September

30, 2004:

Set the fee at zero and transfer only estimated interest

earnings.

This option is inconsistent with the principles of statutory

construction because it would render the section 402(b) provision

concerning establishment of post-September 30, 2004, fee rates

superfluous and essentially inoperative. See In re Surface Mining

Regulation Litigation, 627 F.2d 1346, 1362 (D.C. Cir. 1980) (``It is,

however, a fundamental principal of statutory construction that `effect

must be given, if possible, to every word, clause and sentence of a

statute * * * so that no part will be inoperative or superfluous, void

or insignificant.' ''), quoting from and citing to 2A Sutherland,

Statutory Construction, at Sec. 46.06 (4th ed. 1973). See also Boise

Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991) (statutes

should not be construed so as to render any of their provisions

superfluous). In addition, a fee of zero likely would not satisfy the

section 402(h)(1) requirement that

[[Page 56913]]

transfers from the AML Fund to the CBF may be made only when ``fees are

required to be paid under this section.'' Under this approach, the AML

Fund and, consequently, the interest earned thereon, would decline the

fastest.

Assess fees at a rate that would generate revenues

adequate to maintain the AML Fund at a level that would earn an amount

of interest sufficient to meet CBF needs for unassigned beneficiaries,

up to a maximum of $70 million.

This option could be construed to comply with the

requirement to establish a fee that provides for the transfer to the

Combined Fund under section 402(h). However, to maintain the principal

in the AML Fund at a level that would earn sufficient interest to

continue to provide for transfers to the CBF at recent levels, the fees

under this option could be almost equal to, or even higher than, the

current fees. There is no evidence that, in enacting section 402(b),

Congress intended that the principal balance of the AML Fund would or

should be maintained at a level adequate to generate interest

sufficient to meet CBF needs. This option also could have the effect of

indefinitely extending the AML reclamation program by requiring

collection of fees to replace appropriations for grants to States and

tribes for those programs. There is no evidence that Congress intended

for fees collected from coal produced after September 30, 2004, to be

used for this purpose. Instead, the fact that Congress terminated the

statutorily established reclamation fee in section 402(a) as of

September 30, 2004, suggests the opposite, as does the language in

section 402(b) that requires that, after September 30, 2004, the fee be

established at a rate sufficient to continue to provide for transfers

to the CBF.

Assess a fee at a rate sufficient to meet any deficit

between anticipated CBF health care benefit needs for unassigned

beneficiaries (or $70 million, whichever is less) and the amount of

estimated interest earnings transferred.

There is insufficient statutory authority to implement this option

because nothing in either the statutory language or the legislative

history of SMCRA suggests that, in section 402(b), Congress intended

for any transfers to be made to the CBF in excess of an amount equal to

yearly estimated AML Fund interest earnings (plus the reserve

supplement of prior interest earnings, which is now depleted).

Moreover, it would be anomalous to suggest that Congress intended for

the CBF to receive a transfer of funds in an amount equal to estimated

interest earnings in FY 2004 (as it did) and then to receive transfers

in excess of that amount in FY 2005 and thereafter.

V. What Is the Rationale for the Cap on Annual Transfers to the CBF?

Proposed 30 CFR 870.13(b) and 872.11(e) would cap the amount

transferred to the CBF at the beginning of each fiscal year at the

estimated amount of interest earned by the AML Fund, estimated CBF

expenditures for health care benefits for unassigned beneficiaries, or

$70 million, whichever is the smallest amount. The first two items

would later be adjusted to reflect actual interest earnings and actual

CBF expenditures for that fiscal year, provided the adjustments would

not cause aggregate transfers for that year to exceed $70 million. This

cap is consistent with both historical practice and section 402(h) of

SMCRA. Paragraphs (3)(A) and (4) of section 402(h) impose the cap

relating to CBF expenditures. The $70 million cap receives implied

support from section 402(h)(2)(B) of SMCRA, which allows transfers of

estimated interest earnings to be supplemented by prior interest

earnings, but only up to a total transfer amount of $70 million. It

also reflects the intent of Congress as described in the conference

report on the Energy Policy Act. See 138 Cong. Rec. 17578, 17605 (1992)

(``provision is made for monies to be transferred from the Abandoned

Mine Land Fund in an amount up to, but not more than, $70 million per

year * * *''). In addition, a report from the House Resources Committee

on a bill approved by the Committee but never adopted by the full House

characterizes section 402(h) in its entirety as allowing ``the transfer

to the CBF of not more than $70 million annually.'' See H.R. Rep. No.

106-1014, pt. 1 (2000).

VI. What Would the Fees Be Under This Proposed Rule for Coal Produced

After September 30, 2004?

Under proposed 30 CFR 870.13(b)(1), we would determine fees on an

annual basis, with notice of the fees for each year published in the

Federal Register 30 days before the beginning of the fiscal year to

which they would apply.

Part VII of the preamble to the final rule that we are publishing

in today's Federal Register establishes fees for FY 2005.

Table 1 shows the fees for FY 2005 and our projection of fees for

the following ten years based on this rule; on currently available

estimates on interest rates, CBF needs, and coal production; and on

maintaining current congressional appropriations, grant formulas, and

AML Fund assets available for investment.

Table 1.--Fees for FY 2005 and Fee Projections for FY 2006-2015

----------------------------------------------------------------------------------------------------------------

Estimated CBF Fees for non- Fees for non-

Estimated AML needs for lignite coal lignite coal Fees for

fund interest unassigned produced by produced by lignite coal

Fiscal year earnings beneficiaries surface underground (cents per

(millions of (millions of methods (cents methods (cents short ton)

dollars) dollars) per short ton) per short ton)

----------------------------------------------------------------------------------------------------------------

2005............................ 69.0 85.0 8.8 3.8 2.5

2006............................ 72.0 99.6 8.7 3.7 2.5

2007............................ 71.9 97.9 8.5 3.7 2.4

2008............................ 69.4 96.3 8.5 3.6 2.4

2009............................ 65.8 94.1 7.8 3.4 2.2

2010............................ 61.6 92.2 7.3 3.1 2.1

2011............................ 22.1 90.1 2.6 1.1 0.7

2012............................ 17.6 87.7 2.0 0.9 0.6

2013............................ 14.2 85.4 1.6 0.7 0.5

2014............................ 10.9 83.2 1.2 0.5 0.4

2015............................ 46.4 81.0 5.2 2.2 1.5

----------------------------------------------------------------------------------------------------------------

[[Page 56914]]

In accordance with proposed 30 CFR 870.13(b) and 872.11(e), the

fees in Table 1 are based upon a maximum annual transfer to the CBF of

$70 million or the amount of estimated AML Fund interest earnings for

that year, whichever is less. (The other limiting factor, estimated CBF

needs for unassigned beneficiaries, does not come into play because

those estimates are in excess of $70 million for all years shown in the

table.)

Because section 402(h)(2)(A) of SMCRA refers to the transfer of an

amount equal to the estimated interest ``earned and paid to the Fund

during the fiscal year,'' we originally invested the Fund's assets only

in short-term securities so as to maximize the amount of interest

actually paid to the Fund during each year. By so doing, we also

maximized the amount available for transfer to the CBF. However, we

reevaluated that policy when short-term interest rates declined to the

point that the Fund was earning less than $70 million in interest each

year. We determined that interest on long-term securities could be

deemed to be constructively earned and paid to the Fund on a prorated

basis over the life of those securities even though it is not

physically collected until the securities reach maturity. The estimated

annual interest earnings reported in Table 1 reflect this

interpretation. After changing our policy, in FY 2004, we invested $1.3

billion of the Fund in long-term public debt securities with an average

interest rate of 4.18 percent. That rate is significantly more than the

minuscule returns (currently hovering around one percent) recently

available on short-term securities. However, we anticipate that we will

need to redeem those long-term securities before their maturity dates

to meet future Fund obligations because Congress has not reauthorized

collection of a fee for AML reclamation. Consequently, the net interest

earnings shown in Table 1 for FY 2011-2014 reflect the early redemption

penalties that we expect to incur in those years. In other words, we

will need to subtract early redemption penalties from the total

estimated interest earnings in each of those years. The increase in net

interest earnings shown for FY 2015 reflects the fact that, based on

current estimates and assumptions, as of the end of FY 2014, all long-

term securities will have been redeemed and that we will therefore

incur no further early redemption penalties. By that time, the AML Fund

would be invested exclusively in short-term securities and all

estimated interest earnings on those securities would be available for

transfer without first deducting any early redemption penalties for

long-term securities.

Table 2 contains the coal production estimates that we used to

establish fees for FY 2005 and to estimate fees for the other years in

Table 1.

Table 2.--Estimated Coal Production for Coal Subject to Fee Payment Requirements

[In millions of short tons]

----------------------------------------------------------------------------------------------------------------

Non-lignite

Fiscal year surface Underground Lignite Total

mines mines

----------------------------------------------------------------------------------------------------------------

2005.................................................... 628 317 82 1,027

2006.................................................... 640 327 85 1,052

2007.................................................... 651 335 87 1,073

2008.................................................... 643 346 91 1,080

2009.................................................... 672 340 86 1,098

2010.................................................... 672 350 86 1,108

2011.................................................... 680 346 86 1,112

2012.................................................... 695 345 82 1,122

2013.................................................... 707 352 82 1,141

2014.................................................... 709 351 82 1,142

2015.................................................... 723 359 82 1,164

----------------------------------------------------------------------------------------------------------------

The total production estimates in Table 2 are based upon

projections in the Annual Energy Outlook (December 2003) prepared by

the Energy Information Administration within the Department of Energy

(DOE). We reduced those projections by ten percent to reflect our

historical experience concerning the difference between DOE data and

the tonnage subject to SMCRA's fee payment requirements. Allocation

among the three production categories (surface, underground, and

lignite) is based upon an extrapolation of our fee collection data for

FY 2003.

VII. How Would the Fees Collected for Coal Produced After September 30,

2004, Be Used?

Section 401(b) of the Act provides that the AML Fund consists of

``amounts deposited in the fund,'' including, among other things,

``reclamation fees levied under section 402,'' and ``interest credited

to the fund under subsection (e).'' Thus, under section 401(b) of

SMCRA, fees collected under section 402 of the Act must be deposited

into the AML Fund. Consistent with this requirement, the proposed rule

considers all fees collected to be Fund revenues. See proposed 30 CFR

872.11(a).

The proposed rule would not affect the process by which transfers

are made between the AML Fund and the CBF. That process will remain the

same as in previous fiscal years under applicable law and our

agreements with the Treasury Department and the CBF trustees.

Section 402(g) of the Act establishes an allocation formula that

has been applied to date to the fees collected and to other AML Fund

income. Fifty percent of the fees collected (but no other type of Fund

income) was allocated to the appropriate State or tribal share account

(``State share'' or ``Tribal share''). The remaining fifty percent of

the fees collected, together with all other Fund income (including

interest), were allocated among three other accounts, which are

sometimes referred to collectively as the ``Federal share,'' as

follows:

Twenty percent to the Secretary of Agriculture for use

under section 406 of the Act, which authorizes use of those funds for

the rural abandoned mine program (RAMP). This account is known as the

RAMP allocation.

Forty percent for supplemental AML reclamation grants to

non-certified States and tribes, based on historical coal production

before August 3, 1977. This account is known as the historical

production allocation.

Forty percent for the other purposes of Title IV,

including items such as the small operator assistance program, the

Clean Streams program, the emergency

[[Page 56915]]

reclamation program, reclamation of high priority AML sites in States

and tribes without approved AML reclamation plans, minimum program

makeup grants, and the cost of administering the AML program and

collecting fees. This account is known as the Secretary's discretionary

share.

The existing regulations at 30 CFR 872.11(a) and (b) implement the

statutory requirements discussed above. Under our proposed rule, fees

collected for coal produced for sale, transfer, or use before October

1, 2004, would be allocated according to the statutory scheme.

Similarly, any other Fund income listed in section 401(b) of SMCRA,

including, but not limited to, interest, user charges, recovered

monies, and donations, would continue to be allocated according to that

scheme.

However, we are proposing to add new paragraphs (d) and (e) to

section 872.11 to address the disposition of fees collected for coal

produced for sale, transfer, or use after September 30, 2004, and

modify paragraphs (a) and (b) accordingly. Paragraph (d) would allocate

fees collected for coal produced in any fiscal year beginning after

September 30, 2004, only to the accounts from which the amount of the

transfer to the CBF (as provided in new paragraph (e)) was taken at the

beginning of that year. Fee collections would be distributed among the

contributing accounts in amounts proportionate to which those accounts

contributed to the transfer.

We are proposing to adopt this approach because we believe that the

direction in SMCRA section 402(b) to establish the fee at a rate to

provide for the CBF transfer conflicts with the allocation scheme in

section 402(g) and that the two provisions cannot both be given effect.

Section 402(b) states that, after September 30, 2004, ``the fee shall

be established at a rate to continue to provide for [transfers to the

CBF].'' SMCRA section 402(b), 30 U.S.C. 1232(b). The only purpose of

the fee after September 30, 2004, is to support the continued funding

of the CBF. In this regard, any fees collected would effectively

replace the amount transferred to the CBF. Thus, we believe that the

section 402(b) requirement to establish a fee to provide for the CBF

transfer provides us with a directive to put whatever fees are

collected back into the account from which the transfer was taken.

Transfers to the CBF after September 2004 will take place in the

manner illustrated by the following example for FY 2005. On or about

October 1, 2004, we will direct the Treasury Department to transfer

from the AML Fund to the CBF an amount equal to the amount of interest

that is estimated to be earned by the Fund during FY 2005. We will note

from which accounts the transferred funds were withdrawn. We will levy

a fee on mine operators pursuant to section 402(b) of the Act, with the

goal of achieving aggregate fee collections in an amount equal to the

amount transferred to the CBF. The section 402(b) directive can be

construed as a requirement to use those fees, once collected, to

replenish the accounts that contributed monies for the transfer to the

CBF at the beginning of the year.

We recognize that the section 402(g) allocation formula arguably

conflicts with that requirement. However, we believe that it is

anomalous to suggest that Congress intended, in requiring establishment

of the fee based on the CBF transfer, to also require that the fees

collected continue to be allocated in accordance with the formula

established in section 402(g) of the Act. Thus, for fees from coal

produced after September 30, 2004, there is an inherent conflict

between the direction in section 402(b) and the allocation scheme in

section 402(g).

When there is an ambiguity that cannot be reconciled, the agency

has discretion to reasonably interpret the statute. It is well-settled

that when a court reviews an agency's construction of a statute that

the agency administers, the first question for the court is--

whether Congress has directly spoken to the precise question at

issue. If the intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give effect to

the unambiguously expressed intent of Congress * * * [I]f the

statute is silent or ambiguous with respect to the specific issue,

the question for the court is whether the agency's answer is based

on a permissible construction of the statute.

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 842-43 (1984) (footnotes omitted).

Here, the question is whether Congress has directly spoken to the

precise question at issue; i.e., whether the statute mandates the

allocation of fees collected for coal produced after September 30,

2004, and, if not, whether an interpretation that such allocation is

not required is reasonable. In this case, the statute does not

unambiguously require allocation of these fees. Therefore, the agency

may make the reasonable interpretation that fees collected pursuant to

section 402(b) for transfer to the CBF are not required to be allocated

pursuant to section 402(g). Our proposed addition of paragraph (d) to

section 872.11 of our rules reflects this interpretation.

VIII. How Else Are We Proposing To Revise the AML Fund Rules in 30 CFR

872.11?

We are proposing to reorganize 30 CFR 872.11 to incorporate plain

language principles and make the rules more user-friendly. Those

changes are not substantive revisions. In addition, we are proposing to

eliminate redundant or unnecessary language, improve clarity and

consistency of terminology, consolidate provisions concerning interest,

and add a paragraph reflecting the statutory requirements concerning

transfers to the CBF. The most significant proposed changes (other than

those discussed in Part VII of this preamble) are listed below:

Removal of the sentence from 30 CFR 872.11(a)(6) providing

that interest and other non-fee income to the Fund will be credited

only to ``the Federal share.'' ``Federal share'' is an anachronistic

term that refers to the structure of section 402(g) of SMCRA as

originally enacted. At that time, there were only two types of

accounts: State/tribal share and the Secretary's discretionary share.

However, as part of the Abandoned Mine Reclamation Act of 1990 (Pub. L.

101-508, 104 Stat. 1388-289 through 1388-299), Congress carved several

other mandatory allocations (the RAMP allocation and the historical

production allocation) from the original Secretary's discretionary

share. The preamble to 30 CFR 872.11(a)(6), as revised on May 31, 1994

(see 59 FR 28148-49), clarifies that the term Federal share refers to

three separate allocations (RAMP, historical production, and the

Secretary's discretionary share), consistent with the changes that

Congress made to section 402(g) of the Act.

Paragraph (b) of 30 CFR 872.11 also specifies that interest must be

allocated among those three accounts. Therefore, we are proposing to

remove this sentence from paragraph (a), both to eliminate any

confusion that it may cause and because it is redundant to provisions

in paragraph (b). Furthermore, the purpose of paragraph (a) is to

identify all types of Fund revenues, not to allocate those revenues.

Paragraph (b) addresses allocations.

Removal of language from 30 CFR 872.11(a)(6), (b)(3), and

(b)(4) that references transfers from the AML Fund to the CBF. Proposed

new paragraph (e) would address those transfers in a comprehensive

fashion. Specifically, consistent with paragraphs (g)(1) and (h)(1) of

section 402 of SMCRA, proposed new paragraph (e)(4), like the language

proposed for deletion,

[[Page 56916]]

specifies that the amount transferred the CBF is not subject to the

allocation provisions of section 402(g) of the Act and 30 CFR

872.11(b).

Modification of the introductory language of paragraph (b)

of section 872.11 to clarify that that paragraph governs allocation of

all Fund revenues (except fees collected for coal produced after

September 30, 2004, and an amount of other revenues equal to monies

transferred to the CBF), not just those appropriated by Congress.

Modification of the provision in paragraphs (b)(1) and (2)

of section 872.11 concerning withdrawal of unexpended grant funds from

States and Indian tribes to clarify that we will withdraw those funds

only if the State or tribe no longer has any eligible and available

abandoned mine sites to reclaim. This change is consistent with the

explanation of the meaning of this provision in the preamble to the

existing rule (see 59 FR 28150-51, May 31, 1994). In relevant part, the

preamble states at 59 FR 28151 that:

OSM's practice since the beginning of the AML program is not to

withdraw funds from the States/Indian tribes. Rather, funds which

are not expended by a State/Indian tribe during the grant period are

returned to the State/Indian tribe account for future grants.

Therefore, we are proposing in paragraphs (b)(1)(iii) and (2)(ii)

to specify that unexpended grant funds will be reallocated only if the

Director finds in writing that the amounts involved are not necessary

to carry out reclamation activities on lands within the State or on

Indian lands subject to the tribe's jurisdiction.

Modification of paragraph (b)(3) of section 872.11 to

specify that, consistent with the provisions of section 402(g)(2) of

SMCRA, the RAMP allocation consists of 20 percent of all Fund revenues

(including available interest) remaining after making State and tribal

share allocations. The existing rule assigns RAMP ten percent of all

Fund revenues plus 20 percent of available interest earnings and other

miscellaneous Fund receipts.

Removal of paragraph (b)(8) of section 872.11 as that

paragraph merely duplicates the requirements of paragraph (b)(5)(iii).

Revision of paragraph (b)(5)(iv) of section 872.11 to

adopt language more consistent with that of section 402(g)(3)(D), which

provides that money from the Secretary's discretionary share may be

used ``[f]or the administration of this title by the Secretary.''

Existing paragraph (b)(5)(iv) provides that the Secretary may use those

monies for ``[a]dministration of the Abandoned Mine Land Reclamation

Program.'' To avoid any confusion about the scope of that provision, we

are proposing to revise this paragraph to authorize expenditures for

``[a]dministration of title IV of the Act and this subchapter

[subchapter R of our regulations].''

Modification of paragraph (b)(7) of section 872.11 to

replace references to statutory provisions with references to the

corresponding provisions of our regulations. This change would make our

regulations more specific and user-friendly as the reader would not

have to flip through the statute and then compare those provisions to

our regulations to determine their applicability.

Addition of a new paragraph (e) to section 872.11 to

provide a partial counterpart in our regulations to the CBF transfer

requirements of section 402(h) of SMCRA and to clarify certain of those

requirements, especially the applicability of the $70 million cap on

annual transfers (see part V of this preamble).

IX. Why Are We Publishing a Final Rule at the Same Time as This

Proposed Rule?

In this proposed rule, we are publishing and seeking comment on the

same changes that we are making to 30 CFR part 870 in a final rule

published separately in today's Federal Register. As explained in the

preamble to the final rule, we are making those changes effective

immediately because of the need to have a fee in place on October 1,

2004, and ensure the continued transfer of monies to the Combined

Benefit Fund. As discussed in parts VII and VIII of this preamble, the

proposed rule also includes changes to 30 CFR part 872, the most

significant of which would provide that the new fees need not be

allocated under section 402(g) of SMCRA. After considering comments on

the proposed rule, we may make changes to any or all of the provisions

of this proposed rule. Because the proposed rule mirrors the final rule

that we are adopting today with respect to 30 CFR part 870, the public

will have the opportunity to comment on all issues that we are

addressing in both the proposed and final rules. However, the final

rule that we are adopting today will remain in place until the

effective date of any changes that we make. We invite comment on

whether any changes that we make to 30 CFR part 870 as a result of

comments received should be made effective as of October 1, 2004, to

ensure that they apply during the entirety of FY 2005.

X. How Do I Submit Comments on the Proposed Rule?

Electronic or Written Comments

Your comments should reference a specific portion of the proposed

rule or preamble, explain the reason for any recommended change or

objection, and include supporting data when appropriate. The most

helpful comments 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.

We will not consider anonymous comments, but you may request that

identifying information be withheld as discussed below under

``Availability of comments.'' Please include the docket number for this

rulemaking (1029-AC47) at the beginning of all written comments and in

the subject line of all electronic comments. Except for comments

provided in electronic format, please submit three copies of your

comments if practicable. Comments received after the close of the

comment period (see DATES) or at locations other than those listed

above under ADDRESSES will not be considered or included in the

administrative record of this rulemaking.

Availability of Comments

Except as noted below, all comments, including the names and

addresses of commenters, will be available for review during regular

business hours in our Administrative Record room at the location listed

under ADDRESSES.

You may request that we withhold your home address from the

administrative record. We will honor all such requests from individual

commenters to the extent allowable by law. We also will withhold your

identity upon request, to the extent allowable by law. If you wish us

to withhold your name and/or address, you must state this request

prominently at the beginning of your comment. In addition, if you wish

this information withheld, please do not submit your comments by

electronic means.

We will not withhold names or addresses in comments submitted by

organizations, business entities, or individuals identifying themselves

as representatives or officials of organizations or business entities.

All such comments will be available for public inspection in their

entirety.

Public Hearings

We will hold a public hearing on the proposed rule upon request

only. We

[[Page 56917]]

will announce the time, date, and address for any hearing in the

Federal Register at least 7 days before the hearing.

If you wish to testify at a hearing please contact the person

listed in FOR FURTHER INFORMATION CONTACT, either orally or in writing,

by 4:30 p.m., eastern time, on November 16, 2004. If no one expresses

an interest in testifying at a hearing by that date, we will not hold a

hearing. If only one person expresses an interest, we will hold a

public meeting rather than a hearing. We will place a summary of the

public meeting in the administrative record of this rulemaking.

The public hearing will continue on the specified date until all

persons scheduled to speak have been heard. If you are in the audience

and have not been scheduled to speak but wish to do so, you will be

allowed to testify after the scheduled speakers. We will end the

hearing after all persons scheduled to speak and persons present in the

audience who wish to speak have been heard. To assist the transcriber

and ensure an accurate record, we request, if possible, that each

person who testifies at a public hearing provide us with a written copy

of his or her testimony.

Public meeting: If there is only limited interest in a hearing, we

may hold a public meeting in place of a public hearing. If you wish to

meet with us to discuss the proposed rule, you may request a meeting by

contacting the person listed under FOR FURTHER INFORMATION CONTACT. All

meetings will be open to the public and, if appropriate, we will post

notice of the meetings. A written summary of each public meeting will

be included in the administrative record of this rulemaking.

XI. Procedural Matters

A. Executive Order 12866

This proposed rule is considered a significant rule and is subject

to review by the Office of Management and Budget under Executive Order

12866.

a. This proposed rule would not have an effect of $100 million or

more on the economy. It would not adversely affect in a material way

the economy, productivity, competition, jobs, the environment, public

health or safety, or state, local, or tribal governments or

communities. The rule would not add to the existing cost of operating a

mine under an approved regulatory program in any significant fashion.

We anticipate that the average fee under this rule over the next ten

years would be 5.7 cents per ton of surface-mined coal, which is less

than 0.2 percent of the value of the coal, assuming an average price of

$30 per ton. Furthermore, the fees established under this rule would be

lower than the existing AML reclamation fees, which expire on September

30, 2004. The fees imposed under this rule would result in the

collection of an estimated $469 million from the coal industry during

FY 2005-2014, an average of $46.9 million per year. That amount is

approximately $3 billion less than what would be collected if the

existing AML reclamation fee were extended another 10 years.

b. This proposed rule would not create a serious inconsistency or

otherwise interfere with an action taken or planned by another agency.

c. This proposed rule would not alter the budgetary effects of

entitlements, grants, user fees, or loan programs or the rights or

obligations of their recipients.

d. This proposed rule raises novel legal and policy issues, which

is why the rule is considered significant under Executive Order 12866.

B. Regulatory Flexibility Act

The Department of the Interior certifies that this proposed 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.). See the discussion in part XI.A. above.

C. Executive Order 13211--Actions Concerning Regulations That

Significantly Affect Energy Supply, Distribution, or Use

This proposed rule is not considered a significant energy action

under Executive Order 13211. The replacement of the AML reclamation fee

by a much smaller fee for continuation of the transfers to the CBF

would not have a significant effect on the supply, distribution, or use

of energy.

D. Small Business Regulatory Enforcement Fairness Act

This proposed rule is not a major rule under 5 U.S.C. 804(2), the

Small Business Regulatory Enforcement Fairness Act. For the reasons

stated in part XI.A. above, this proposed rule would not:

a. Have an annual effect on the economy of $100 million or more.

b. Cause a major increase in costs or prices for consumers,

individual industries, Federal, State, or local government agencies, or

geographic regions.

c. Have significant adverse effects on competition, employment,

investment, productivity, innovation, or the ability of U.S.-based

enterprises to compete with foreign-based enterprises for the reasons

stated above.

E. Executive Order 12630--Takings

This proposed rule does not have any significant takings

implications under Executive Order 12630. Therefore, a takings

implication assessment is not required.

F. Executive Order 13132--Federalism

This proposed rule does not have significant federalism

implications because it does not concern relationships between the

Federal government and State or local governmental units. Therefore,

there is no need to prepare a Federalism Assessment.

G. Executive Order 13175--Consultation and Coordination With Indian

Tribal Governments

To the extent that this proposed rule may have a substantial direct

effect 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, potentially affected tribal

governments will be notified through this publication in the Federal

Register, and by direct notification from OSM, of the ramifications of

this rulemaking. This will enable tribal officials and other tribal

constituencies throughout Indian Country to have meaningful and timely

input in the development of the final rule. Upon receipt and evaluation

of all comments, we will publish a document addressing the comments and

making any appropriate changes to the final rule.

H. Executive Order 12988 on Civil Justice Reform

The Department of the Interior has determined that this proposed

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

Order 12988, ``Civil Justice Reform'' (56 FR 55195).

I. Unfunded Mandates Reform Act

This proposed rule would not impose a cost of $100 million or more

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

J. Federal Paperwork Reduction Act

The Department of the Interior has determined that this rule does

not contain collections of information which require approval by the

Office of Management and Budget under 44 U.S.C. 3501 et seq. OMB has

previously approved the collection activities and assigned clearance

numbers 1029-0063 and 1029-0090 for the OSM-1 form and

[[Page 56918]]

coal weight determination, respectively. Under this rule, the only

change to the OSM-1 form would be a reduction in the fee rates printed

on the form.

K. National Environmental Policy Act

OSM has determined that this rulemaking action is categorically

excluded from the requirement to prepare an environmental document

under the National Environmental Policy Act of 1969, as amended, 42

U.S.C. 4332 et seq. In addition, we have determined that none of the

``extraordinary circumstances'' exceptions to the categorical exclusion

apply. This determination was made in accordance with the Departmental

Manual (516 DM 2, Appendixes 1.9 and 2).

L. Clarity of This Regulation

Executive Order 12866 requires each agency to write regulations

that are easy to understand. We invite your comments on how to make

this rule easier to understand, including answers to questions such as

the following:

(1) Are the requirements in the rule clearly stated?

(2) Does the rule contain technical language or jargon that

interferes with its clarity?

(3) Does the format of the 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 numerous but shorter sections? (A ``section'' appears in bold type

and is preceded by the symbol ``Sec. '' and a numbered heading; for

example, ``Sec. 870.13.'')

(5) Is the description of the rule in the SUPPLEMENTARY INFORMATION

section of this preamble helpful in understanding the rule?

(6) What else could we do to make the rule easier to understand?

Send a copy of any comments that concern how we could make this

rule easier to understand to: Office of Regulatory Affairs, Department

of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240.

You may also e-mail the comments to this address: [email protected].

List of Subjects

30 CFR Part 870

Abandoned Mine Reclamation Fund, Reclamation fees, Reporting and

recordkeeping requirements, Surface mining, Underground mining.

30 CFR Part 872

Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,

Reporting and recordkeeping requirements, Surface mining, Underground

mining.

Dated: September 7, 2004.

Chad Calvert,

Acting Assistant Secretary, Land and Minerals Management.

For the reasons set forth in the preamble, the Department is

proposing to amend 30 CFR parts 870 and 872 as follows:

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

PRODUCTION REPORTING

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

follows:

Authority: 28 U.S.C. 1746, 30 U.S.C. 1201 et seq., and Pub. L.

105-277.

2. In Sec. 870.12, paragraph (d) is revised to read as follows:

Sec. 870.12 Reclamation fee.

* * * * *

(d) The reclamation fee shall be paid after the end of each

calendar quarter beginning with the calendar quarter starting October

1, 1977.

3. Amend Sec. 870.13 as follows:

A. Revise the section heading.

B. Redesignate paragraphs (a) through (d) as paragraphs (a)(1)

through (4).

C. Add a heading for paragraph (a).

D. Add a new paragraph (b).

The revision and additions read as follows.

Sec. 870.13 Fee rates.

(a) Fees for coal produced for sale, transfer, or use through

September 30, 2004. (1) * * *

* * * * *

(b) Fees for coal produced for sale, transfer, or use after

September 30, 2004. In this paragraph (b), ``we'' refers to OSM,

``Combined Fund'' refers to the United Mine Workers of America Combined

Benefit Fund established under section 9702 of the Internal Revenue

Code of 1986 (26 U.S.C. 9702), and ``unassigned beneficiaries premium

account'' refers to the account established under section 9704(e) of

the Internal Revenue Code of 1986 (26 U.S.C. 9704(e)).

(1) Fees to be set annually. We will establish the fee for each ton

of coal produced for sale, transfer, or use after September 30, 2004,

on an annual basis. The fee per ton is based on the total fees required

to be paid each fiscal year, as determined under paragraph (b)(2) of

this section, allocated among the estimated coal production categories,

as provided in paragraph (b)(3) of this section. We will publish the

fees for each fiscal year after Fiscal Year 2005 in the Federal

Register at least 30 days before the start of that fiscal year. Once we

publish the fees, they will not change for that fiscal year and they

will apply to all coal produced during that fiscal year.

(2) Calculation of the total fee collections needed. The total

amount of fee collections needed for any fiscal year is the amount that

must be transferred from the Fund to the Combined Fund under section

402(h) of the Act (30 U.S.C. 1232(h)) for that fiscal year, with any

necessary adjustments for the amount of any fee overcollections or

undercollections in prior fiscal years. We will calculate the amount of

total fee collections needed as follows:

(i) Step one. We will determine the smallest of the following

numbers:

(A) The estimated net interest earnings of the Fund during the

fiscal year;

(B) $70 million; or

(C) The most recent estimate provided by the trustees of the

Combined Fund of the amount that will be debited against the unassigned

beneficiary premium account for that fiscal year (``the Combined Fund's

needs'').

(ii) Step two. We will increase or decrease, as appropriate, the

amount determined under step one by the amount of any adjustments to

previous transfers to the Combined Fund resulting from a difference

between estimated and actual interest earnings or the estimated and

actual Combined Fund's needs. This paragraph (b)(2)(ii) applies only to

adjustments to transfers for prior fiscal years beginning on or after

October 1, 2004, and only to those adjustments that have not previously

been taken into account in establishing fees for prior years.

(iii) Step three. We will adjust the amount determined under steps

one and two of this section by an amount equal to the difference

between the fees actually collected (based on estimated production) and

the amount that should have been collected (based on actual production)

for any prior fiscal year beginning on or after October 1, 2004, if the

difference has not previously been taken into account in establishing

fees for prior years.

(3) Establishment of fees. We will use the following procedure to

establish the per-ton fees for each fiscal year:

(i) Step one. We will estimate the total tonnage of coal that will

be produced during that fiscal year and for which a fee payment

obligation exists, categorized by the types of coal and mining methods

described in paragraph (b)(3)(ii) of this section.

[[Page 56919]]

(ii) Step two. We will allocate the total fee collection needs

determined under paragraph (b)(2) of this section among the various

categories of estimated coal production under paragraph (b)(3)(i) of

this section to establish a per-ton fee based upon the following

parameters:

(A) The per-ton fee for anthracite, bituminous or subbituminous

coal produced by underground methods will be 43 percent of the rate for

the same type of coal produced by surface methods.

(B) Regardless of the method of mining, the per-ton fee for lignite

coal will be 29 percent of the rate for other types of coal mined by

surface methods.

(C) The per-ton fee for in situ mined coal will be the same as the

fees set under paragraphs (b)(3)(ii)(A) and (B) of this section,

depending on the type of coal mined. The fee will be based upon the

quantity and quality of gas produced at the site, converted to Btu's

per ton of coal upon which in situ mining was conducted, as determined

by an analysis performed and certified by an independent laboratory.

PART 872--ABANDONED MINE RECLAMATION FUNDS

4. The authority citation for part 872 is revised to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

5. Amend Sec. 872.11 as follows:

A. In paragraph (a):

i. Revise the introductory text.

ii. Revise paragraph (a)(1).

iii. Remove the word ``and'' in paragraph (a)(4).

iv. Remove the period and add in its place ``; and'' in paragraph

(a)(5).

v. Revise paragraph (a)(6).

B. In paragraph (b):

i. Revise the introductory text.

ii. Revise paragraphs (b)(1) through (b)(5).

iii. Add a new heading in paragraph (b)(6).

iv. Revise paragraph (b)(7).

v. Remove paragraph (b)(8).

C. Add paragraphs (d) and (e).

The revisions and additions read as follows:

Sec. 872.11 Abandoned Mine Reclamation Fund.

(a) Fund revenues. Revenues to the Fund include--

(1) Fees collected under section 402 of the Act and part 870 of

this chapter;

* * * * *

(6) Interest and any other income earned from investment of the

Fund.

(b) Allocation of Fund revenues. Except as provided in paragraphs

(d) and (e) of this section, monies deposited in the Fund will be

allocated and used as follows, subject to appropriation by Congress--

(1) State share. An amount equal to 50 percent of the reclamation

fees collected under Sec. 870.13(a) of this chapter during each fiscal

year will be allocated at the end of that year to the State in which

they were collected.

(i) Reclamation fees collected from Indian lands will not be

included in the calculation of amounts to be allocated to a State.

(ii) No monies will be allocated to any State that advises OSM in

writing that it does not intend to submit a State abandoned mine

reclamation plan under section 405 of the Act.

(iii) Amounts granted to a State that have not been expended within

three years from the date of grant award will be available for use

under paragraph (b)(5) of this section if the Director finds in writing

that the amounts involved are not necessary to carry out reclamation

activities on lands within the State.

(2) Tribal share. An amount equal to 50 percent of the reclamation

fees collected from Indian lands under Sec. 870.13(a) of this chapter

during each fiscal year will be allocated at the end of that year to

the Indian tribe or tribes having an interest in the lands from which

the fees were collected.

(i) No monies will be allocated to any Indian tribe that advises

OSM in writing that it does not intend to submit a tribal abandoned

mine reclamation plan under section 405 of the Act.

(ii) Amounts granted to an Indian tribe that have not been expended

within three years from the date of grant award will be available for

use under paragraph (b)(5) of this section if the Director finds in

writing that the amounts involved are not necessary to carry out

reclamation activities on Indian lands subject to the tribe's

jurisdiction.

(3) Rural Abandoned Mine Program. An amount equal to 20 percent of

the monies collected and deposited in the Fund each fiscal year

(including interest but excluding monies allocated under paragraphs

(b)(1) and (2) of this section) will be allocated for transfer to the

Secretary of Agriculture for the Rural Abandoned Mine Program

authorized by section 406 of the Act.

(4) Grants based on historical coal production. An amount equal to

40 percent of the monies collected and deposited in the Fund each

fiscal year (including interest but excluding monies allocated under

paragraphs (b)(1) and (2) of this section) will be allocated for use by

the Secretary to supplement annual grants to States and Indian tribes

under section 405 of the Act.

(i) States and Indian tribes eligible for supplemental grants are

those that have not--

(A) Certified the completion of all eligible coal-related

reclamation needs under section 411(a) of the Act; and

(B) Completed the reclamation of all sites meeting the priorities

in paragraphs (a)(1) and (2) of section 403 of the Act.

(ii) In allocating these funds to eligible States and Indian

tribes, the Secretary will use a formula based upon the amount of coal

historically produced before August 3, 1977, in the State or from the

Indian lands concerned.

(iii) The Secretary will not provide funds under this paragraph to

a State or Indian tribe in any year in which funds to be granted during

that year from the State's allocation under paragraph (b)(1) of this

section or the tribe's allocation under paragraph (b)(2) of this

section will be sufficient to address all remaining eligible coal-

related sites in the State or on the tribe's Indian lands that meet the

priorities in paragraphs (a)(1) and (2) of section 403 of the Act.

(iv) Funds awarded to a State or Indian tribe under this paragraph

may not exceed the amount needed to fully address all remaining

eligible coal-related sites in the State or on the tribe's Indian lands

that meet the priorities in paragraphs (a)(1) and (2) of section 403 of

the Act after utilizing all available funds under paragraph (b)(1) or

(2) of this section.

(5) Secretary's discretionary share. Monies collected and deposited

in the Fund that are not allocated under paragraphs (b)(1) through (4)

of this section may be used for any of the following purposes--

(i) Up to $10 million per year for the small operator assistance

program under section 507(c) of the Act;

(ii) Emergency projects under section 410 of the Act, including

grants to States and Indian tribes for this purpose;

(iii) Non-emergency abandoned mine land reclamation projects on

eligible lands in States without an approved abandoned mine reclamation

plan under section 405 of the Act or on eligible Indian lands where the

Indian tribe does not have an approved abandoned mine reclamation plan

under section 405 of the Act;

(iv) Administration of title IV of the Act and this subchapter; and

(v) Projects authorized under section 402(g)(4) of the Act in

States without an approved abandoned mine reclamation plan under

section 405 of the Act or on Indian lands where the Indian tribe does

not have an approved abandoned mine

[[Page 56920]]

reclamation plan under section 405 of the Act.

(6) Minimum program grants. * * *

(7) Special allocation provisions. Funds allocated or expended by

the Secretary under paragraphs (b)(3) and (5) of this section will not

be deducted from funds allocated or granted to a State or Indian tribe

under paragraphs (b)(1), (2), (4), and (6) of this section.

* * * * *

(d) Disposition of fees collected for coal produced after September

30, 2004. Fees collected under Sec. 870.13(b) of this chapter for a

fiscal year will be allocated to the accounts from which the amount

transferred under paragraph (e) of this section was taken at the

beginning of that fiscal year. The amount allocated to each account

will be proportionate to the amount transferred from that account.

(e) Transfers to Combined Benefit Fund. (1) At the beginning of

each fiscal year for which fees must be paid under section 402 of the

Act and Sec. 870.13 of this chapter, the Secretary will transfer

monies from the Fund to the United Mine Workers of America Combined

Benefit Fund established under section 9702 of the Internal Revenue

Code of 1986 (26 U.S.C. 9702) for the purpose described in section

402(h)(3)(A) of the Act and in the amount prescribed in paragraphs

(h)(2) through (4) of section 402 of the Act.

(2) The amount of estimated Fund interest earnings transferred to

the Combined Benefit Fund under paragraph (e)(1) of this section in any

one fiscal year may not exceed the lesser of $70 million or the amount

of the expenditures described in section 402(h)(3)(A) of the Act.

(3) If actual Combined Benefit Fund expenditures differ from the

estimates provided under section 402(h)(3)(A) of the Act, or if

interest earnings differ from the projections used to determine the

amount of the transfer under section 402(h)(2)(A) of the Act, the

amount transferred from the Fund to the Combined Benefit Fund in future

years will be adjusted accordingly. However, the total amount

ultimately transferred for any one fiscal year may not exceed $70

million, although adjustments for transfers in prior fiscal years may

result in the transfer of more than $70 million during any given year.

(4) The amount transferred under paragraph (e)(1) of this section

will be deducted from the amount of Fund revenues subject to allocation

under paragraphs (b)(3) through (5) of this section at the end of the

fiscal year.

[FR Doc. 04-20998 Filed 9-16-04; 8:45 am]

Editorial Note:

Federal Register Proposed Rule document 04-20998 was published

originally in the Federal Register of Friday, September 17, 2004 at

69 FR 56132. In the paper edition of the September 17 issue, page

56132 appeared as a blank page, due to a technical malfunction. The

online edition of the Federal Register was not affected. A complete

version of the document appears on page 56132 in both the HTML and

PDF versions posted online on GPO Access (http://www.gpoaccess.gov/fr/index.html). The corrected document is republished in its

entirety.

[FR Doc. R4-20998 Filed 9-21-04; 8:45 am]

BILLING CODE 1505-01-D