4864 Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Proposed Rules

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 761

RIN 1029–AB82

Prohibitions of 522(e)

AGENCY: Office of Surface Mining

Reclamation and Enforcement,

Department of the Interior.

ACTION: Proposed interpretative rule.

SUMMARY: The Office of Surface Mining

Reclamation and Enforcement (OSM) of

the U.S. Department of the Interior

(DOI) is proposing an interpretative

rulemaking to address the question of

whether subsidence due to underground

mining is a surface coal mining

operation and thus prohibited in areas

enumerated in section 522(e) of the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA).

OSM proposes to interpret SMCRA and

implementing rules to provide that

subsidence due to underground mining

is not a surface coal mining operation,

and therefore is not prohibited in areas

protected under SMCRA section 522(e).

OSM proposes to construe the definition

of ‘‘surface coal mining operations’’ at

SMCRA section 701(28)(A) and in the

analogous portion of the existing rules

at 30 CFR 700.5 not include subsidence,

and to include only (1) surface activities

in connection with a surface coal mine

and (2) surface activities in connection

with those surface operations and

impacts of an underground coal mine

subject to section 516. Similarly, OSM

would construe the second part of this

definition, at SMCRA section 701(28)(B)

and in the analogous portion of the

existing rules at 30 CFR 700.5, to

include only the areas upon which such

surface activities occur, and the areas

where such surface activities disturb the

surface and to holes or depressions

resulting from or incident to such

surface activities. Only ‘‘surface coal

mining opearation’’ are prohibited

within the areas protected by section

522(e). Therefore, neither subsurface

activities that may result in subsidence,

nor actual subsidence, would be

prohibited on lands protected by section

522(e). Rather, such underground

activities and their impacts, including

subsidence, would be subject to

regulation under sections 516 and 720.

DATES: Electronic or written comments:

OSM will accept electronic or written

comments on the proposed rule until

5:00 p.m. Eastern time on June 2, 1997.

Public hearings: Anyone wishing to

testify at a public hearing must submit

a request on or before 5:00 p.m. Eastern

time on March 17, 1997. Because OSM

will hold a public hearing at a particular

location only if there is sufficient

interest, hearing arrangements, dates

and times, if any, will be announced in

a subsequent Federal Register notice.

Any disabled individual who needs

special accommodation to attend a

public hearing should contact the

person listed under FOR FURTHER

INFORMATION CONTACT.

ADDRESSES: Electronic or written

comments: Submit electronic comments

to osmruleso@smre.gov. Mail written

comments to the Administrative Record,

Office of Surface Mining Reclamation

and Enforcement, 1951 Constitution

Avenue, N.W., Washington, DC 20240

or hand-deliver to the person listed

under FOR FURTHER INFORMATION

CONTACT.

Public hearings: If there is sufficient

interest, hearings may be held in

Billings, MT; Denver, CO; Lexington,

KY; Washington, DC; and Washington,

PA. To request a hearing, contact the

person listed under FOR FURTHER

INFORMATION CONTACT by the time

specified under DATES using any of the

methods listed for ‘‘Electronic or written

comments’’.

FOR FURTHER INFORMATION CONTACT:

Nancy R. Broderick, Rules and

Legislation, Office of Surface Mining

Reclamation and Enforcement, Room

115, South Interior Building, 1951

Constitution Avenue, N.W.,

Washington, DC 20240. Telephone:

(202) 208–2700.

E-mail address: nbroderi@osmre.gov.

Additional information concerning

OSM, this rule, and related documents

may be found on OSM’s home page at

http://www.osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

II. Discussion of Proposed Rule

A. Background

B. Statutory Analysis

III. Procedural Matters

I. Public Comment Procedures

Electronic or Written Comments

Comments should be specific and

confined to issues pertinent to the

proposed rule. They also should include

explanations in support of the

commenter’s recommendations. OSM

appreciates any and all comments, but

those most useful and likely to

influence decisions on the content of a

final rule will be those that either

involve personal experience or include

citations to and analyses of the Act, its

legislative history, its implementing

regulations, case law, other pertinent

State or Federal laws or regulations,

technical literature, or other relevant

publications.

Except for comments provided in an

electronic format, commenters should

submit two copies of their comments

whenever practicable. Comments

received after the time indicated under

DATES or at locations other than the

OSM office listed under ADDRESSES will

not necessarily be considered in the

final decision or included in the

administrative record.

Public Hearing

Persons wishing to testify at a public

hearing must contact the person listed

under FOR FURTHER INFORMATION

CONTACT by the time indicated under

DATES. If no one requests an opportunity

to comment at a public hearing, no

hearing will be held.

If a public hearing is held, it will

continue until all persons scheduled to

speak have been heard. Persons in the

audience who were not scheduled to

speak but who wish to do so will be

heard following the scheduled speakers.

The hearing will end after all scheduled

speakers and any other persons present

who wish to speak have been heard.

Filing of a written statement at the

time of the hearing will assist the

transcriber and facilitate preparation of

an accurate record. Submission of

electronic or written statements to OSM

in advance of the hearing will allow

OSM officials to prepare appropriate

questions.

Public Meeting

If there is only limited interest in a

hearing at a particular location, a public

meeting, rather than a public hearing,

may be held. Persons wishing to meet

with OSM representatives to discuss the

proposed rule may request a meeting by

contacting the person listed under FOR

FURTHER INFORMATION CONTACT. All

meetings will be open to the public and,

if possible, notice of the meetings will

be posted at the appropriate locations

listed under ADDRESSES. A written

summary of each public meeting will be

made a part of the administrative record

for this rulemaking.

II. Discussion of Rule

A. Background

On March 13, 1979, OSM

promulgated permanent program rules

as required by section 501(b) of the

Surface Mining Control and

Reclamation Act of 1977 (Public Law

95–87, 30 U.S.C. 1201 et seq.) (SMCRA

or the Act). See 44 FR 14902. The Act

prohibits surface coal mining operations

on all lands designated in section

522(e), subject to valid existing rights
Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Proposed Rules 4865

and except for those operations which

existed on August 3, 1977. Lands

designated in section 522(e)(1) include

any lands within the boundaries of units

of the National Park System, the

National Wildlife Refuge Systems, the

National System of Trails, the National

Wilderness Preservation System, the

Wild and Scenic Rivers System,

including study rivers designated under

section 5(a) of the Wild and Scenic

Rivers Act (16 U.S.C. 1276(a)) or study

rivers or study river corridors as

established in any guidelines pursuant

to that Act, and National Recreation

Areas designated by Act of Congress.

Additional lands designated by sections

522(e) (2), (3), (4), and (5) include

National Forests; publicly owned parks;

properties listed on the National

Register of Historic Places; 100 foot

buffer zones around public roads and

cemeteries; and 300-foot buffer zones

around occupied dwellings, public

buildings, schools, churches,

community or institutional buildings,

and public parks. The term ‘‘valid

existing rights’’ (VER) is not defined in

SMCRA. In a separate rulemaking,

published in this issue of the Federal

Register OSM intends to define VER

and address requirements and

procedures for the submission and

processing of VER claims.

Under section 522(e), if a person who

proposes to conduct a surface coal

mining operation on protected lands

does not qualify for one of the statutory

exceptions, then the person cannot

conduct the intended operation on such

lands. See 30 CFR section

773.15(c)(3)(ii) (1990). Section 522(e)

does not specifically mention

subsidence as a prohibited activity.

The need for this interpretative

rulemaking derives in part from

litigation concerning the applicability of

the sections 522(e) (4) and (5)

prohibitions to underground mining.

The issue is whether and to what extent

subsidence and underground coal

extraction operations which cause or are

expected to cause subsidence are

prohibited. In 1988, OSM issued a

proposed rule to address the issue. See

53 FR 52374, December 27, 1988.

However, the entire proposed rule was

withdrawn for further study in 1989. 54

FR 30557, July 21, 1989. The

withdrawal was based on comments

received on the proposed rule, and on

OSM’s analysis of the issues, which

indicated to OSM that this was

fundamentally a legal issue. OSM

therefore decided to seek a formal

opinion from the Office of the Solicitor,

U.S. Department of the Interior, on this

matter. The Solicitor completed his

review of this issue in July, 1991, and

concluded that the best interpretation of

SMCRA is that subsidence is not a

surface coal mining operation subject to

the prohibitions of § 522(e).

The Solicitor’s Memorandum of

Opinion (M–Op.) is based on an

extensive analysis of the statute, the

legislative history, relevant case

authority and OSM’s regulatory actions

with respect to the applicability of

section 522(e) to subsidence from

underground mining. The M–Op.

concluded that Congress did not intend

for the prohibitions of section 522(e) to

apply to subsidence from underground

mining and noted that OSM may

regulate subsidence solely under section

516 of SMCRA and not under section

522(e). While the M–Op. recognizes that

regulation under section 516 may not

have precisely the same effect as

regulation under section 522(e), the

analysis provides support for the

conclusion that regulation under section

516 will achieve full protection of the

environmental values which Congress

sought to protect from subsidence under

the Act while encouraging longwall

mining.

On July 18, 1991, OSM published a

Notice of Inquiry (NOI) which stated

that, based on OSM’s review of the Act

and the legislative history, the

comments received on the December 27,

1988, proposal, and the M–Op., OSM

concluded that no further rulemaking

action was necessary in regard to the

applicability of section 522(e)

prohibitions to underground mining.

OSM concluded that the regulations, at

30 CFR 761.11 (d), (e), (f) and (g),

adequately address underground mining

and appropriately apply the statutorilyestablished buffer zones in a horizontal

dimension only.

On September 6, 1991, the National

Wildlife Federation (NWF) filed legal

action against the Secretary challenging

the July 18 NOI and the July 10 M–OP.,

on the applicability of 522(e) of SMCRA

to subsidence. National Wildlife

Federation (NWF) v. Babbitt, No. 91–

2275–TAF (D.D.C. September 22, 1993).

The NWF contended that both the M–

Op. and the NOI violated the

requirements of the Administrative

Procedure Act (APA), the National

Environmental Policy Act (NEPA), and

SMCRA. NWF requested, among other

things, that the court order OSM to

undertake rulemaking to determine the

applicability of Section 522(e) to

subsidence, and vacate the M–Op. and

the NOI. In addition, a motion was filed

by the Interstate Mining Compact

Commission (IMCC) and a number of

industry groups, including the National

Coal Association (NCA) and American

Mining Congress (AMC), to intervene as

defendants in this action. That motion

was granted by the court.

The district court vacated the NOI on

September 23, 1993, on procedural

grounds, and remanded the case to the

Secretary for rulemaking on the

applicability of section 522(e) to

subsidence, in accordance with the

notice and comment procedures of the

APA, 5 U.S.C. section 551 et seq.

National Wildlife Federation (NWF) v.

Babbitt, No. 91–2275–TAF (D.D.C.

September 22, 1993).

B. Statutory Analysis

Title V of the Act sets forth the basic

regulatory requirements for coal mining

operations for which permits are

required under the Act. Title V includes

provisions which establish regulatory

schemes for surface coal mining, the

surface effects of underground coal

mining, and protection of lands

unsuitable for surface coal mining

operations.

Analysis of the structure of Title V

and the Act as a whole confirms that

Congress set out related but separate

regulatory schemes for surface and

underground mining. Congress had

received ample testimony prior to the

passage of the Act regarding the

differences in both the nature and

consequences of the two types of coal

mining. The legislative history

emphasizes that the differences in the

nature and consequences of the two

types of mining require significant

differences in regulatory approach. See

SMCRA section 516(a), 30 U.S.C.

1266(a); see also SMCRA sections 516

(b)(10) and (d), 30 U.S.C. 1266 (b)(10)

and (d). See, e.g., H.R. Rep. No. 2 18,

95th Cong., 1st Sess. 59 (1977); S. Rep.

No. 128, 95th Cong., 2nd Sess. 50

(1977); H.R. Rep. No. 1445, 94th Cong.,

2nd Sess. 19 (1976); S. Rep. No. 402,

93rd Cong., 2nd Sess. 83 (1973); H.R.

Rep. No. 1072, 93rd Cong. 2nd Sess. 57,

108 (1974); H.R. Rep. No. 1462, 92nd

Cong., 2d Sess. 32 (1972); 123 Cong.

Rec. 8083, 8154 (1977); 123 Cong. Rec.

7996 (1977); 123 Cong. Rec. 3726 (1977).

For instance, Congress was aware that

the types of environmental risks

associated with underground mining

are, for the most part, significantly

different from those associated with

surface mining. Environmental impacts

associated with (pre-SMCRA)

unregulated or unreclaimed

underground mines included

subsidence and hydrological problems

that were hidden deep underground and

not observable at the surface for an

unpredictably long time. Such surface

consequences could be severe and longlasting. The problems in some cases

remained fundamentally inaccessible or
4866 Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Proposed Rules

unchangeable because of adverse

technological, geological and

hydrological conditions.

By contrast, most of the impacts of

unregulated pre-SMCRA surface mining

resulted from surface activities that

were more immediate and more readily

observable, and the resulting conditions

were relatively accessible for

reclamation. See H.R. Rep. NO. 1445,

94th Cong., 2d Sess. 20–22 (1976).

This proposed rulemaking addresses

whether the provisions of section

522(e), which expressly apply to

‘‘surface coal mining operations,’’

should be construed as applying to

subsidence from underground mining,

which is not specifically referenced in

the definition of that term. Addressing

this issue requires interpretation of the

phrase ‘‘surface coal mining operations’’

as used in section 522(e) and defined in

section 701(28). See 30 U.S.C. 1272(e);

1291(28).

In the past, OSM has not taken a

definitive position on the issue of the

applicability of section 522(e) to

subsidence. In some documents, OSM

has apparently taken the position that

section 522(e) does apply to subsidence

from underground mining. In the 1979

rulemaking which first established

permanent program rules under

SMCRA, OSM dealt with this issue in

two provisions. Concerning the

definitions at 30 CFR 761.5, OSM

rejected a comment that ‘‘surface

operations and impacts incident to an

underground mine’’ should be limited

to subsidence. 44 FR 14990, March 13,

1979. Such operations and impacts are

permitted in some circumstances in

National Forests under an exception to

section 522(e)(2). The negative

implication would appear to be that

such operations and impacts (including

subsidence) are otherwise prohibited by

section 522(e).

In the preamble discussion of the

regulation at 30 CFR 761.11(d), which

concerned the section 522(e)(4)

prohibition on mining within 100 feet of

the right-of-way of a public road, OSM

accepted a comment that the 100 feet

should be measured horizontally ‘‘so

that underground mining below a public

road is not prohibited.’’ OSM stated its

belief that mining under a road should

not be prohibited ‘‘where it would be

safe to do so.’’ 44 FR 14994, March 13,

1979. The negative implication from

this last clause would appear to be that

mining under a public road should be

prohibited where it would be unsafe to

do so, but the preamble does not discuss

whether such prohibition would come

from section 516 or from an

interpretation that section 522(e)

prohibits subsidence that causes

material damage.

See also letter of Patrick Boggs, Office

of Surface Mining, to Ralph Albright, Jr.,

regarding Otter Creek Coal Co. v. United

States, January 19, 1981; and

Determination of Valid Existing Rights

Within the Otter Creek Wilderness Area

of Monongahela National Forest; Notice,

49 FR 31228, 31231, 31233 (August 3,

1984), characterizing subsidence as a

prohibited surface impact under section

522(e); and Federal Defendant’s

Supplemental Memorandum on the

Relationship Between section 522(e)

and the Surface Impacts of Underground

Coal Mining at 8, In re Permanent

Surface Mining Regulation Litigation II,

No. 79–1144 (D.D.C. 1985).

However, in its approvals of State

regulatory programs, OSM has not

required states to apply the lands

unsuitable prohibitions to subsidence.

In fact, OSM has accepted both the

policy of some states not to apply the

prohibitions to subsidence, and the

policy of other states to apply the

prohibitions only to subsidence causing

material damage. See Statement of

Interstate Mining Compact Commission

Re Oversight Hearing on Subsidence

Issues, Before the Mining and Natural

Resources Subcommittee, Committee on

Interior and Insular Affairs, U.S. House

of Representatives, June 28, 1990. With

the exception of Colorado, Illinois,

Indiana, and Montana, states with active

underground coal mining do not apply

the prohibitions of section 522(e) to

subsidence. The states regulate the

effects of subsidence through state

regulations which implement section

516 of SMCRA. Those regulations

provide for the restriction, repair, and

compensation for subsidence and

material damage to certain structures

and lands. Colorado does not allow

material damage to structures even with

landowner waivers or VER. Illinois

prohibits planned subsidence in section

522(e) areas. The mineral owner must

possess the right to subside through

applicable waiver or VER. Indiana

regulations prohibit material damage

from subsidence to certain structures

and lands. Indiana has not approved

planned subsidence in past permits, and

has not developed specific policies

related to the approval of planned

subsidence. Information obtained from

Indiana indicates that it anticipates that

it would prohibit subsidence unless the

mineral owner possesses the specific

right through applicable waiver or VER.

Also, Montana has no defined policy

regarding the regulation of subsidence.

This is due in part to the fact that the

State has one inactive underground

mine that has not begun production.

Montana is sparsely populated, and has

not encountered conditions that require

it to determine whether subsidence is

prohibited in section 522(e) areas. See

Proposed Revision to the Permanent

Program Regulations Implementing

section 522(e) of the Surface Mining

Control and Reclamation Act of 1977,

Draft Environmental Impact Statement:

OSM–EIS–29 (June, 1995), prepared by

U.S. Office of Surface Mining

Reclamation and Enforcement, Table II–

1 at pages II–2,3.

Because OSM arguably has taken

conflicting or unclear positions in the

past, OSM is proposing to develop a

definitive position on this issue,

consistent with the Act. For the reasons

set forth below, OSM proposes to

interpret SMCRA as regulating

subsidence under sections 516 and 720;

and proposes to interpret section 522(e)

in light of the statutory definition of

‘‘surface coal mining operations’’ in

section 701(28), as not applying to

subsidence from underground mining.

Section 516

Section 516 establishes the regulatory

requirements for the surface effects of

underground coal mining, including

provisions for the control of subsidence

from underground coal mining. SMCRA

section 516 provides in relevant part:

(a) The Secretary shall promulgate rules

and regulations directed toward the surface

effects of underground coal mining

operations, embodying the following

requirements and in accordance with the

procedures established under section 501 of

this Act: Provided, however, That in adopting

any rules and regulations the Secretary shall

consider the distinct difference between

surface coal mining and underground coal

mining. * * *

(b) Each permit issued under any approved

State or Federal program pursuant to this Act

and relating to underground coal mining

shall require the operator to—

(1) adopt measures consistent with known

technology in order to prevent subsidence

causing material damage to the extent

technologically and economically feasible,

maximize mine stability, and maintain the

value and reasonably foreseeable use of such

surface lands, except in those instances

where the mining technology used requires

planned subsidence in a predictable and

controlled manner: Provided, That nothing in

this subsection shall be construed to prohibit

the standard method of room-and-pillar

mining:

(c) In order to protect the stability of the

land, the regulatory authority shall suspend

underground coal mining under urbanized

areas, cities, towns, and major

-impoundments, or permanent streams if he

finds imminent danger to inhabitants of the

urbanized areas, cities, towns, and

communities.

(d) The provisions of Title V of this Act

relating to State and Federal programs,
Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Proposed Rules 4867

permits, bonds, inspections and enforcement,

public review, and administrative and

Judicial review shall be applicable to surface

operations and surface impacts incident to an

underground coal mine with such

modifications to the permit application

requirements, permit approval or denial

procedures, and bond requirements as are

necessary to accommodate the distinct

difference between surface and underground

coal mining, * * *

30 U.S.C. section 1266.

Section 516 is implemented in large

part at 30 CFR Part 817, which sets forth

the performance standards for

underground coal mining. The

provisions concerning subsidence

control in Part 817 include performance

standards which require the prevention

of material damage and maintaining the

value and reasonably foreseeable use of

surface lands, or using mine technology

for planned subsidence in a predictable

and controlled manner; compliance

with the subsidence control plan; repair

of material damage; and a detailed plan

of underground workings.

Section 516(b) sets the foundation for

a regulatory scheme intended to control

subsidence to the extent technologically

and economically feasible in order to

protect the value and use of surface

lands. Section 516(c) authorizes

suspension of underground mining

under urban areas and water bodies,

when there is imminent danger to

inhabitants. Section 516(c) applies in

those situations in which an

underground mine has been permitted

because all applicable permitting

standards, including standards for

prevention of material damage, have

been met, but actual underground

mining poses a serious subsidence

danger to inhabitants of urban areas and

water bodies.

Section 515

Section 515 of the Act sets out the

environmental protection performance

standards for surface coal mining,

including standards for backfilling and

grading to approximate original contour;

revegetation; reconstruction of prime

farmlands; impoundments; augering;

protecting the hydrologic balance;

protecting fish and wildlife values;

disposal of excess spoil, mine waste,

and acid-forming and toxic materials,

use of explosives; and constrution of

roads. This section is implemented in

large part at 30 CFR Part 816.

Section 720

Section 720 of SMCRA was added by

the Energy Policy Act of 1992, Public

law 102–486, 106 Stat. 2776 (1992). The

statute was enacted on October 24,

1992. Section 720 provides, in relevant

part:

(a) Underground coal mining operations

conducted after the date of enactment of this

section shall comply with each of the

following requirements:

(1) Promptly repair, or compensate for,

material damage resulting from subsidence

caused to any occupied residential dwelling

and structures related thereto, or noncommercial building due to underground

coal mining operations. Repair of damage

shall include rehabilitation, restoration, or

replacement of the damaged occupied

residential dwelling and structures related

thereto, or non-commercial building and

shall be in the full amount of the diminution

in value resulting from the

subsidence. * * *

(2) Promptly replace any drinking,

domestic, or residential water supply from a

well or spring in existence prior to the

application for a surface coal mining and

reclamation permit, which has been affected

by contamination, diminution, or

interruption resulting from underground coal

mining operations. Nothing in this section

shall be contrued to prohibit or interrupt

underground coal mining operations.

30 U.S.C. 1310.

On March 31, 1995, OSM published

final regulations implementing these

provisions. The implementing

regulations are set forth primarily in

Parts 701, 784, and 817. Amendments to

Part 701 provide definitions of key

terms. The regulations require a

presubsidence survey to document the

condition of protected structures and

the quantity and quality of protected

water supplies, that could be damaged

by subsidence. The regulations also

clarify that, if the proposed mining

would provide for planned subsidence

in a predictable and controlled manner,

then, with certain exceptions, the

permittee must take measures consistent

with the mining method, to minimize

material damage to the extent

technologically and economically

feasible to non-commercial buildings

dwellings and related structures.

Section 522(e)

In addition to the regulation of surface

and underground coal mining under

sections 515, 516, and 720, SMCRA

section 522(e) imposes certain

prohibitions on surface coal mining

operations on lands designated by

Congress as unsuitable for those

operations. Congress determined that

the nature and purpose of certain areas

and land uses were incompatible with

surface coal mining operations. See S.

Rep. No. 128, 95th Cong. 1st Sess. 55

(1977). Therefore, SMCRA section

522(e) states that, with certain

exceptions, surface coal mining

operations are prohibited on or within

specified distances of those lands and

uses.

Section 522(e) provides, in relevant

part, as follows:

After the enactment of this Act and subject

to valid existing rights no surface coal

mining operations except those which exist

on the date of enactment of the Act shall be

permitted—

(1) on any lands within the boundaries of

units of the National Park System, the

National Wildlife Refuge Systems, the

National System of Trails, the National

Wilderness Preservation System, the Wild

and Scenic Rivers System, including study

rivers designated under section 5(a) of the

Wild and Scenic Rivers Act and National

Recreation Areas designated by Act of

Congress;

(2) on any Federal lands within the

boundaries of any national forest: Provided,

however, That surface coal mining operations

may be permitted on such lands if the

Secretary finds that there are no significant

recreational, timber, economic, or other

values which may be incompatible with such

surface mining operations and—

(A) surface operations and impacts are

incident to an underground coal mines or

(B) where the Secretary of Agriculture

determines, with respect to lands which do

not have a significant forest cover within

those national forests west of the 100th

meridian, that surface mining is in

compliance with the Multiple-Use SustainedYield Act of 1969, the Federal Coal Leasing

Amendments Act of 1975, the National

Forest Management Act of 1976, and the

provisions of this Act: And provided further,

that no surface coal mining operations may

be permitted within the boundaries of the

Custer National Forests;

(3) which will adversely affected any

publicly owned park or places included in

the National Register of Historic Sites unless

approved jointly by the regulatory authority

and the Federal, State, or local agency with

jurisdiction over the park or the historic site;

(4) within one hundred feet of the outside

right-of-way line of any public road, except

where mine access roads or haulage roads

join such right-of-way line and except that

the regulatory authority may permit such

roads to be relocated or the area affected to

lie within one hundred fact of such road, if

after public notice and opportunity for public

hearing in the locality a written finding is

made that the interests of the public and the

landowners affected thereby will be

protected; or (5) within three hundred feet

from any occupied dwelling, unless waived

by the owner thereof, nor within three

hundred feet of any public building, school,

church, community, or institutional building,

public park, or within one hundred fact of a

cemetery.

30 U.S.C. 1272(e) (emphasis added).

Section 522(e) is implemented

primarily at 30 CFR Part 761. That part

provides definitions of key terms

concerning SMCRA section 522(e) and

describes the procedures to be followed

in implementing the prohibitions of

section 522(e). Sections 522(e) (4) and

(5) are implemented by 30 CFR 761.11

(d) through (g) which provides that
4868 Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Proposed Rules

subject to valid existing rights and an

exemption for mines existing on August

3, 1977, no surface coal mining

operations shall be conducted within

the specified distances, ‘‘measured

horizontally,’’ of the listed features and

facilities. The regulation implementing

section 522(e) requires a determination,

as a prerequisite for permit issuance

under section 515 or 516, whether a

requester has the right to conduct a

surface coal mining operation of such

lands. 30 CFR 761.12 (1990).

The language ‘‘measured

horizontally,’’ was added in response to

a comment which requested that OSM

clarify that underground mining

beneath a public road would not be

prohibited. Although, OSM explained

that it did not believe mining under a

road should be prohibited when it

would be safe to do so, OSM provided

no clarification as to what is meant by

‘‘safe to do so.’’

Section 701(28)

Section 522(e) of SMCRA establishes

that subject to VER and except for

operations existing on August 3, 1977,

‘‘surface coal mining operations’’ are

prohibited in each of the five areas set

out in subparagraphs (e)(1) through

(e)(5). Thus an understanding of the

definition of the term ‘‘surface coal

mining operations’’ in section 701(28) is

required to determine the scope of the

prohibitions. The term ‘‘surface coal

mining operations’’ is defined in section

701(28) and includes certain aspects of

underground coal mining. However,

section 701(28) does not specifically

mention subsidence.

Section 701(28) provides in full as

follows:

‘‘surface coal mining operations’’ means—

(A) activities conducted on the surface of

lands in connection with a surface coal mine

or subject to the requirements of section 516

surface operations and surface impacts

incident to an underground coal mine, the

products of which enter commerce or the

operations of which directly or indirectly

affected interstate commerce. Such activities

include excavation for the purpose of

obtaining coal including such common

methods as contour, strip, auger,

mountaintop removal, box cut, open pit, and

area mining, the uses of explosives and

blasting, and in situ distillation or retorting,

leaching or other chemical or physical

processing, and the cleaning, concentrating,

or other processing or preparation, loading of

coal for interstate commerce at or near the

mine site: Provided, however, That such

activities do not include the extraction of

coal incidental to the extraction of other

minerals where coal does not exceed 162⁄3

per centum of the tonnage of minerals

removed for purposes of commercial use or

sale or coal explorations subject section 512

of this Act; and

(B) the areas upon which such activities

occur or where such activities disturb the

natural land surface. Such areas shall also

include any adjacent land the use of which

is incidental to any such activities, all lands

affected by the construction of new roads or

the improvement or use of existing roads to

gain access to the site of such activities and

for haulage, and excavations, workings,

impoundments, dams, ventilation shafts,

entryways, refuse banks, dumps, stockpiles,

overburden piles, spoil banks, culm banks,

tailings, holes or depressions, repair areas,

storage areas, processing areas, shipping

areas and other areas upon which are sited

structures, facilities, or other property or

materials on the surface, resulting from or

incident to such activities.

30 U.S.C. 1291(28).

Interpretation of Section 701(28)

While the definition of ‘‘surface coal

mining operation’’ in SMCRA section

701(28) is not a clearly drafted

provision, OSM believes that paragraph

(A) of the definition includes only

surface activities which are connected

with a surface coal mine, and surface

activities connected with those surface

operations and surface impacts that are

incident to an underground mine and

that are subject to section 516. This

proposed interpretation is consistent

with the description of the effect of

section 701(28) in the Senate Report on

the version of the definition that was

adopted:

‘‘Surface [coal] mining operations’’ * * *

includes all areas upon which occur surface

mining activities and surface activities

incident to underground mining. It also

includes all roads, facilities, structures,

property, and materials on the surface

resulting from or incident to such activities

S. Rep. No. 128, 95th Cong. 1st Sess. 98

(1977) (emphasis added).

Paragraph (B) of section 701(28)

supports this interpretation. Paragraph

(A) refers to ‘‘activities conducted on the

surface of lands in connection with a

surface coal mine or * * * ‘‘surface

operations and surface impacts incident

to an underground coal mine * * *.’’

Paragraph (B) refers to ‘‘the areas upon

which such activities occur or where

such activities disturb the natural land

surface’’ and to holes or depressions

‘‘resulting from or incident to such

activities * * *’’ (emphasis added). The

only ‘‘activities’’ to which paragraph (B)

could refer are those described in

paragraph (A), namely those conducted

on the surface of lands in connection

with a surface coal mine or in

connection with the surface operations

and impacts incident to an underground

coal mine.

Under this construction, subsidence

would not be included within the term

‘‘surface coal mining operations’’

because it is not an activity conducted

on the surface of lands, and it is not an

area on which surface activities occur,

or an area where surface activities

disturb the surface, or a hole or

depression resulting from or incident to

surface activities. Surface activities

associated with surface operations

incident to underground mining, and

surface activities associated with surface

impacts incident to underground

mining would be included in the

definition. While subsidence is clearly a

surface impact incident to underground

mining, it is not a surface activity under

the definition of surface coal mining

operations. This reading of subsection

701(28), however, would not mean that

subsidence would be exempt from

regulation under the Act, since Congress

specifically provided for regulation of

subsidence under section 516 of

SMCRA.

Relationship of Section 522(e) to

Sections 516 and 720

OSM believes, based on its

interpretation of the language of section

516 and of the legislative history, that

Congress intended section 516(c), in

combination with other regulatory

provisions under section 516 and

section 720, to offer sufficient

prohibition, prevention, or repair of

subsidence damage to those features

that Congress considered vulnerable to

significant impairment from subsidence.

The existence of this comprehensive

regulatory scheme in section 516 make

it unlikely that Congress also intended

to prohibit subsidence under section

522(e).

The legislative history of section 516

contains ample references to Congress’

focus on control rather than prohibition.

The following is pertinent House Report

language:

Surface subsidence has a different effect on

different land uses. Generally, no appreciable

impact is realized on agricultural land and

similar types of land and productivity is not

affected. On the other hand when subsidence

occurs under developed land such as that in

an urbanized area, substantial damage results

to surface improvements be they private

homes, commercial buildings or public roads

and schools. One characteristic of subsidence

which disrupts surface land uses is its

unpredictable occurrence in terms of both

time and location. Subsidence occurs,

seemingly on a random basis, at least up to

60 years after mining and even in those areas

it is still occurring. It is the intent of this

section to provide the Secretary with the

authority to require the design and conduct

of underground mining methods to control

subsidence to the extent technologically and

economically feasible in order to protect the

value and use of surface lands.

H.R. Rep. No. 218, 95th Cong., 1st Sess. 126

(1977).
Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Proposed Rules 4869

In those extreme cases in which

Congress felt that prohibition could be

necessary, it provided broad authority

under section 516(c):

In order to prevent the creation of

additional subsidence hazards from

underground mining in developing areas,

subsection (c) provides permissive authority

to the regulatory agency to prohibit

underground coal mining in urbanized areas,

cities, towns and communities, and under or

adjacent to industrial buildings, major

impoundments or permanent streams.

S. Rep. No. 128 at 84–85.

It is reasonable to conclude that

Congress addressed specifically, in

section 516(c), the limited types of

surface features that might be so

significantly affected by subsidence

from underground mining that a

subsidence prohibition could be

appropriate. This conclusion that

prohibition was to be imposed solely

under 516(c) is buttressed by the

discussion in the House report quoted

above, that subsidence has no

appreciable impact on agricultural land

and similar types of land. It is not

necessary to impose the prohibitions of

section 522(e) on subsidence because

the surface features that might need

such protection are covered by section

516(c).

This conclusion is also supported by

the discussion in the 1977 Senate report

on section 522(e) which notes that

‘‘surface coal mining’’ is prohibited

within the specified distances of public

roads, occupied buildings, and active

underground mines, ‘‘for reasons of

public health and safety.’’ S. Rep. No.

128 at 55. Clearly, one of Congress’

purposes in section 522(e)(4)–(5) was to

protect public health and safety.

Prohibition of subsidence in all section

522(e) areas would be unnecessary,

however, given that an underground

mine must meet the requirements of

section 516 to prevent material damage

and to maintain the value and use of

lands, and those requirements should

prevent risks to public health and

safety. Moreover, if an unforeseen and

imminent subsidence danger were to

arise, section 516(c) requires that

underground mining be suspended as

necessary, thus providing a second level

of protection for public health and

safety. Therefore, Congress had already

addressed in section 516 those

subsidence control measures necessary

to address public health and safety.

Sections 516 and 720, the sections of

the Act expressly dealing with

subsidence, treat subsidence as a surface

impact to be regulated only to the extent

that it:

(1) Causes material damage (section

516(b)(1) and section 720(a)(1)), or

(2) Diminishes the value or the reasonably

foreseeable uses of the surface (section

516(b)(1)) or

(3) Creates imminent danger (section

516(c)), or

(4) Contaminants, diminishes, or interrupts

a domestic water supply (section 720(a)(2)).

The legislative history of SMCRA

indicates that Congress was only

concerned with subsidence insofar as it

causes environmental or safety

problems, disrupts land uses, or

diminishes land values. Congress has

repeatedly recognized that there is little

concern about subsidence that causes no

significant damage to a surface use or

facility or danger to human life or

safety. See H.R. Rep. No. 218, 95th

Cong., 1st Sess. 126 (1977); H.R. Rep.

No. 1445, 94th Cong., 2nd Sess. 71–72

(1976); H.R. Rep. No. 896, 94th Cong.,

2d Sess. 73–74 (1976); H.R. Rep. No. 45,

94th Cong. 1st Sess. 115–116 (1975);

H.R. Rep. No. 1072, 93rd Cong., 2d Sess.

108–109 (1974); H.R. Rep. No. 776,

102nd Cong., 2d Sess. 102–474 (1992).

Congressional Intent

OSM’s proposed interpretation is

consistent with Congress’ intent to

encourage underground mining and full

coal resource recovery. The statute and

legislative history express Congress’

intent to ‘‘encourage the full utilization

of coal resources through the

development and application of

underground extraction technologies,’’

SMCRA section 102(k), 30 U.S.C.

section 1202(k). Similarly, Congress

found that:

The overwhelming percentage of the

Nation’s coal reserves can only be extracted

by underground mining methods, and it is,

therefore, essential to the national interest to

insure the existence of an expanding and

economically healthy underground coal

mining industry.

SMCRA section 101(b), 30 U.S.C. section

1201(b).

In fact, there is evidence that Congress

wished to encourage longwall mining in

particular:

Underground mining is to be conducted in

such a way as to assure appropriate

permanent support to prevent surface

subsidence of land and the value and use of

surface lands, except in those instances

where the mining technology approved by

the regulatory authority at the outset results

in planned subsidence. Thus, operators may

use underground mining techniques, such as

long-wall mining, which completely extract

the coal and which result in predictable and

controllable subsidence.

S. Rep. No. 128, 95th Cong., 1st Sess. 84

(1977). See also S. Rep. No. 28, 94th Cong.,

1st Sess. 215 (1975).

Clearly, if subsidence is likely to

occur from room-and-pillar

underground mining and is a virtually

inevitable consequence of longwall

mining, then prohibiting all subsidence

below homes, roads, and other features

specified in section 522(e) could make

it substantially less feasible to mine and

could substantially reduce the level of

coal recovery in areas where such

features are common on the surface.

Thus, inclusion of subsidence in the

definition of ‘‘surface coal mining

operations’’ at section 701(28), and

application of the section 522(e)

prohibitions to subsidence could be

regarded as failing to accommodate

congressional recognition of the

importance of underground mining and

longwall mining in particular. The

application of the prohibitions in

section 522(e) to subsidence could

substantially impeded longwall and

other full-extraction mining methods.

As discussed above, the language of

SMCRA demonstrates that Congress

intended to encourage underground

mining and especially full-extraction

methods such as longwall mining.

Congress intended that longwall and

other mining techniques that completely

remove the coal be used as subsidence

control measures. See H.R. Rep. No.

218, supra. Such techniques involve

planned subsidence.

Comparison of Underground Mining

Techniques

Mine productivity improved

significantly during the 1980’s thus

reversing the declining trend of the

earlier decade. Productivity increased

by an average of 6.6 percent per year

between 1980 and 1990 (Department of

Energy, Energy Information

Administration (EIA), 1990).

Improvement in underground mine

productivity was particularly

impressive. While surface mining

productivity rose 86 percent during the

1980’s, productivity at underground

mines more than doubled.

The increases in productivity can be

attributed to intense competition

between coal producers, technology

advancement, changing market

conditions, improved labor/

management relations, and a matured

and more experienced labor force. The

three primary underground mining

methods principally used to extract coal

are room-and-pillar, room-and-pillar

with secondary mining, and longwall

mining. Room-and-pillar is the

predominant underground mining

method, although longwall mining has

increased in use in the United States

since 1960.
4870 Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Proposed Rules

Room and Pillar Mining

Room and pillar mining is the

predominant method of coal extraction

in the United States. The room and

pillar method in its basic form consists

of driving entries, rooms and cross-cuts

into the coal seam to extract coal. Pillars

of coal are left to support the mine roof,

or for haulage and ventilation. This

procedure is called ‘‘development’’

mining. Movements of the ground

surface during this procedure are nearly

always imperceptible.

To increase the extraction of coal

where conditions allow, development

mining is followed by ‘‘pillar recovery,’’

where the pillars are systematically

extracted. This is called secondary (or

retreat) mining. Secondary mining

occurs when the coal pillars left to

support the mine roof are extracted

during the retreat mining phase to

obtain maximum recovery of the coal.

Pillar extraction is invariably

accompanied by subsidence of the

ground surface as the overburden sags

into the mined-out area in response to

the removal of mine-level support.

Where pillar extraction is not conducted

and the operator intends to leave surface

support, the pillars must be designed to

permanently support the overburden.

During the development mining

phase, 30 to 50 percent of the coal may

be extracted from the panel. In order to

prevent subsidence, the remainder of

the coal may not be recovered from a

mine panel. However, when the roof

collapses in a controlled fashion and the

surface subsidence is not a limiting

factor, secondary mining can be

practiced to increase the coal recovery

up to 85 percent.

Longwall Mining

Longwall mining is a high extraction

mining method that maximizes the

recovery of coal resources. The

development of the mains and submains for access and ventilation of the

longwall panels is essentially identical

to the development of room and pillar

mining. However, the longwall mining

methods differs from room-and-pillar

mining in that the mine working panel

is fully extracted during mining by a

fully automated shearer or plow. The

mineral extraction ratio for longwall

mining operation can be as high as 90

percent in each panel. Retreat mining on

a longwall panel results in 100 percent

coal extraction.

In longwall mining, groups of three or

four parallel entries are driven

perpendicular to the main entry on

either side of the proposed panel. The

width of the panel varies from 500 to

1,200 feet, and length from 4,000 to

15,000 feet. Longwall mining removes

the coal in one operation by means of

a long working face or wall that

advances, or retreats, in a continuous

line. The coal is cut by a shearer or coal

plough which travels up and down

along the face and makes 27 to 39 inch

deep cuts. The broken coal falls on to

an Armored Flexible Conveyor (AFC)

which transfers the coal to the Stage

Loader. The coal is then conveyed to the

surface through several belt conveyors.

Mechanical steel supports known as

Shields or Chocks are used to support

the mine roof along the entire longwall

face. After each cutting cycle of the

shearer/plough, the steel supports and

AFC are hydraulically advanced. The

mine roof immediately behind the AFC

is allowed to cave. The space from

which the coal has been removed is

either allowed to collapse or is

completely or partially filled with stone

and debris. The roof rock that falls into

the mined our area is referred to as the

‘‘gob.’’ As the overburden continues to

collapse, effects of subsidence

progresses upwards to the surface.

However, solid coal barriers and pillars

are left in the mine for haulage,

ventilation, and other purposes. Ninety

percent of the surface subsidence

caused by longwall mining occurs

within 4 to 6 weeks of mining.

Significance of Longwall mining.

Longwall mining has a long history of

use in Europe and has been tried at

various times in the United States. In

early attempts—some prior to 1900—

labor costs associated with moving

manual supports made the methods less

competitive than room and pillar

mining. But, in the past two decades,

longwall mining has become the safest,

most productive and most economic

underground mining method. While

overall underground production

remained relatively flat between 1980

and 1993, longwall production grew at

an annual rate of 6.1 percent. Longwall

mining is anticipated to continue to be

an important and expanding type of

mining. In 1993, it accounted for 38

percent of the coal extracted by

underground mining methods, were

recovered by longwall mining. The

Economic Analysis (EA) estimates that

longwall mining will account for 48

percent of production by 2015. See

(Proposed Revision to the Permanent

Program Regulations Implementing

section 522(e) of the Surface Mining

Control and Reclamation Act of 1977,

and Proposed Rulemaking Clarifying the

Applicability of section 522(e) to

Subsidence from Underground Mining

prepared by OSM and USGS,

(September 1, 1995)

Longwall mining operations require

large investments in capital equipment,

but are less labor intensive than roomand-pillar operations. It is estimated

that longwall mining requires only onethird of the manpower at the face as

does room-and-pillar mining. The high

capital costs associated with longwall

mining are generally offset with lower

operating costs, due primarily to the

higher productivity of longwall mining.

The average operating costs for a coal

mine operation include the operating

cost per ton and the return on the

capital cost allocated per ton. The

operating costs for longwall mine range

from $0.50 to $2.00 per ton, while

operating costs for room-and-pillar

range from $2.00 to $7.00 per ton, while

Room-and-pillar mining operation costs

average an additional $3.25 per ton

more than longwall mining because of

increased labor and material costs

associated with mine operation.

In some instances, use of the longwall

mining method is the most economical

and safest means to extract the coal in

particular geologic areas. For example,

when a coal seam is 1,000 feet or more

below the surface, the cost of mining

would be so high that it would

effectively prevent coal from being

mined by any method other than

longwall. Another example are those

areas where the high limestone content

in particular coal seams creates fragile

roof conditions which make room-andpillar mining impossible. Longwall

mining provides the economy of scale

so that mining costs are lowered and a

relatively safe working environment is

created.

Implications of Applying 522(e)

Prohibitions to Subsidence From

Underground Mining

Currently, owners of coal reserves,

who hold valid deeds, typically have

the property right to mine coal beneath

dwellings without obtaining explicit

permission in the form of waivers from

owners of the dwellings.

However, under SMCRA when the

coal is mined, the mining companies

must meet all existing subsidence

performance standards, take steps to

minimize damage to dwellings, repair or

compensate for damage that does occur

to dwellings, assure adequate domestic

water supplies, and take other measures

as set out in OSM’s recent regulations

on subsidence (60 FR 16722 (Friday,

March 31, 1995)).

If Section 522(e) were to apply to

subsidence from underground mining,

the operator would be required to plan

the operation to preclude mining in all

portions of the underground workings

where mining would cause subsidence
Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Proposed Rules 4871

affecting a protected surface feature. The

surface area affected by subsidence is

usually considerably larger than the area

actually mined underground. Because

subsidence typically occurs in a funnel

shape radiating upward and outward

from the underground mine cave-in, any

surface impacts may extend well

beyond the area directly above the mine.

Thus, to ensure that subsidence would

not take place within a surface area

specified in section 522(e), underground

mine operations would be required to

leave coal in place around each

protected feature for a horizontal

distance much larger than the protected

area. The amount of coal left in-place to

support dwellings would result in a

pattern of irregular mined areas that

would in effect, eliminate the

contiguous coal reserves needed to

sustain the economic advantage of

longwall operations. Consequently, few

new longwall mines would be opened.

Over time, existing longwall mines

could continue those operations that

would extract coal reserves pursuant to

the ‘‘needed for and adjacent to’’ valid

existing rights provisions implementing

SMCRA.

Mining could be allowed in some

cases in lands protected by 522(e) (2),

(3), and (4), and some (5) areas, if an

appropriate waiver or approval were

obtained by the permit applicant for

mining coal directly underneath the

protected feature. The coal for which a

mining company would have to obtain

a waiver would include the coal directly

under the dwelling, a 300-foot buffer

around the house, and an additional

buffer area based on the predicted angle

of draw and the depth of the coal seam.

However, homeowners could decide to

withhold waivers denying access to the

coal under their dwellings and within

the surrounding buffer area. Both the

Environmental Impact Statement and

the Economic Analysis indicate that the

withholding of dwelling waivers has the

potential to significantly alter coal

mining operations. The waiver authority

would apply to new longwall

operations. Consequently, OSM

estimated that if 10 percent or more of

homeowners withheld waivers,

longwall mining operations would not

be economically viable. The economic

impacts of applying the prohibitions of

section 522(e) to subsidence are

discussed in more detail in the draft

Economic Analysis.

In summary, longwall mining is an

important and expanding type of

mining. It accounted for 38 percent of

the underground mining in 1993, and is

forecasted to increase its share to 48

percent by 2015. Longwall mining is a

low-cost underground mining method,

and in some instances, may be the only

economically feasible underground

mining method when the coal seam is

deep or the roof is extremely fragile. The

key to the competitive advantage of

longwall mining is access to large blocks

of uninterrupted coal. If the prohibitions

of 522(e) were to apply to subsidence,

longwall mining would no longer be

economically feasible if as few as 10

percent of the owners of occupied

dwellings denied waivers for mining. A

more detailed discussion of impacts on

mining is provided in the Draft

Environmental Impact Statement (DEIS)

on the Proposed Revision to the

Permanent Program Regulations

Implementing Section 522(e) of the

Surface Mining Control and

Reclamation Act of 1977, and Proposed

Rulemaking Clarifying the Applicability

of Section 522(e) to Subsidence from

Underground Mining OSM–EIS–29

(September, 1995) and Draft Economic

Analysis prepared for this rulemaking.

OSM also evaluated the impact of

various policy options for this

rulemaking in the DEIS and EA

prepared for this proposed

interpretative rulemaking. OSM

encourages comments on the DEIS and

EA.

Summary of Analysis

Under Section 516, OSM has ample

authority to regulate surface effects of

underground mining under existing

regulations or under any additional

regulations that OSM might reasonably

conclude are necessary to implement

the Act. There would be no regulatory

hiatus if section 522(e) does not apply

to subsidence. However, if OSM were to

identify any environmental values or

public interests that warrant additional

protection, OSM has full authority

under section 516 and other SMCRA

provisions, to develop standards to

protect such values or interests, without

the disruption in the longwall mining

industry that would result from

applying section 522(e) prohibitions to

subsidence.

Based on analysis of the language and

the legislative history of sections 516,

522(e) and 701(28) of SMCRA, and a

consideration of the congressional

findings and purposes set out in

sections 101 and 102, OSM proposes to

interpret section 522(e) as not applying

to subsidence from underground mining

activities, or to the underground

activities that may lead to subsidence.

OSM bases this proposal in part on its

conclusion that subsidence is not

included in the term ‘‘surface coal

mining operations’’ as defined in

SMCRA section 701(28). OSM’s

interpretation is also based in part on a

conclusion that subsidence from

underground mining is properly and

adequately regulated under sections 516

and 720. OSM believes that this

interpretation will promote the general

statutory scheme of SMCRA and fully

protect the environment and public

interest. OSM is soliciting comments on

the need to amend 30 CFR to indicate

that section 522(e) does not apply to

subsidence from underground coal

mining activities, or the underground

activities that may lead to subsidence.

III. Procedural Matters

Federal Paperwork Reduction Act

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.

Executive Order 12630

In accordance with E.O. 12630, the

Department has determined that the

proposed interpretative rule does not

have significant takings implications.

Executive Order 12866

This rule has been reviewed under

E.O. 12866. It is considered significant

and OSM has prepared an economic

analysis which is now available to the

public for review and comment.

Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility

Act, 5 U.S.C. 601 et seq., the Department

of the Interior has determined that this

rule would not have a significant

economic impact on a substantial

number of small entities.

National Environmental Policy Act

On April 28, 1994 (59 FR 21996),

OSM published a notice of intent to

prepare a revised environmental impact

statement (EIS) analyzing both VER and

the applicability of the prohibitions in

section 522(e) of the Act to underground

coal mining. OSM has completed a

revised draft EIS (OSM–EIS–29), which

is now available to the public for review

and comment.

Executive Order 12988 (Civil Justice

Reform)

This proposed rule has been reviewed

under the applicable standards of

section 3(b)(2) of E.O. 12988, ‘‘Civil

Justice Reform’’, (61 FR 4729). In

general, the requirements of section

3(b)(2) are covered by the preamble

discussion of this rule. Individual

elements of the order are addressed

below:

1. What is the preemptive effect, if

any, to be given to the regulation?

This interpretative rule is not

intended to have a preemptive effect on
4872 Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Proposed Rules

existing state law. To the extent that this

rule might ultimately result in the

preemption of state law, the provisions

of SMCRA are intended to preclude inconsistent State laws and regulations

unless they provide for more stringent

land use or environmental controls and

regulations. This approach is

established in SMCRA and has been

judicially affirmed.

2. What is the effect on existing

federal laws or regulations, if any,

including all provisions repealed or

modified?

This proposed rule would affect the

implementation of SMCRA as described

in the preamble. It is not intended to

modify the implementation of any other

federal statute. The preamble discussion

specifies the federal regulatory

provisions that would be affected by

this rule.

3. Does the rule provide a clear and

certain legal standard for affected

conduct rather than a general standard,

while promoting simplification and

burden reduction?

As discussed in the preamble, the

standards proposed in this rule are as

clear and certain as practicable, given

the complexity of the topics covered,

the mandates of SMCRA and the

legislative history of section 522(e) of

SMCRA.

4. What is the retroactive effect, if

any, to be given to this regulation?

This proposed rule is not intended to

have retroactive effect.

5. Are administrative proceedings

required before parties may file suit in

court? Which proceedings apply? Is the

exhaustion of administrative remedies

required?

Since this rule is only in proposed

form, these questions are not applicable.

However, if the rule is adopted as

proposed, the following answers would

apply:

No administrative proceedings are

required before parties may file suit in

court challenging the provisions of this

rule under section 526(a) of SMCRA, 30

U.S.C. 1276(a). However, administrative

procedures must be exhausted prior to

any judicial challenge to the application

of this rule. In situations involving OSM

application of this rule, applicable

administrative procedures may be found

at 30 CFR 775.11 and 43 CFR Part 4. In

situations involving state regulatory

authority application of provisions

analogous to those contained in this

rule, applicable administrative

procedures are set forth in each state

regulatory program.

6. Does the rule define key terms,

either explicitly or by reference to other

regulations or statutes that explicitly

define those items?

Terms important to the understanding

of this rule are set forth in 30 CFR 700.5,

701.5 and 761.5.

7. Does the rule address other

important issues affecting clarity and

general draftsmanship of regulations set

forth by the Attorney General, with the

concurrence of the Director of the Office

of Management and Budget, that are

determined to be in accordance with the

purposes of the Executive Order?

The Attorney General and the Director

of the Office of Management and Budget

have not issued any guidance on this

requirement.

Unfunded Mandates

For purposes of compliance with the

Unfunded Mandates Reform Act of

1995, this rule will not impose any

obligations that individually or

cumulatively would require an

aggregate expenditure of $100 million or

more by State, local, and Tribal

governments and the private sector in

any given year.

Author: The principal author of this

proposed rule is Nancy Broderick, Rules and

Legislation, Office of Surface Mining

Reclamation and Enforcement, 1951

Constitution Avenue, N.W., Washington, DC

20240; Telephone (202) 208–2700.

List of Subjects in 30 CFR Part 761

Historic preservation, National

forests, National parks, National trails

system, National wild and scenic rivers

system, Surface mining, Underground

mining, Wilderness areas, Wildlife

refuges.

Dated: April 30, 1996.

Bob Armstrong,

Assistant Secretary, Land and Minerals

Management.

[FR Doc. 97–2183 Filed 1–30–97; 8:45 am]

BILLING CODE 4310–05–M