[Federal Register Volume 62, Number 21 (Friday, January 31, 1997)]
[Proposed Rules]
[Pages 4864-4872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2183]



[[Page 4864]]

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DEPARTMENT OF THE INTERIOR
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.

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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 <a href="/cdn-cgi/l/email-protection#bed1cdd3cccbd2dbcdd1fecdd3ccdb90d9d1c8"><span class="__cf_email__" data-cfemail="6708140a15120b02140827140a150249000811">[email protected]</span></a>. 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: <a href="/cdn-cgi/l/email-protection#3d535f4f5259584f547d524e504f58135a524b"><span class="__cf_email__" data-cfemail="fd939f8f9299988f94bd928e908f98d39a928b">[email protected]</span></a>. 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

[[Page 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 
Sec. 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 statutorily-established 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 long-lasting. The problems in some cases remained 
fundamentally inaccessible or

[[Page 4866]]

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,

[[Page 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 non-commercial 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 Sustained-Yield 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

[[Page 4868]]

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 16\2/3\ 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).


[[Page 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.

[[Page 4870]]

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 sub-
mains 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 room-and-pillar 
operations. It is estimated that longwall mining requires only one-
third 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-
and-pillar 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

[[Page 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

[[Page 4872]]

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 in-consistent 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


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