[Federal Register Volume 62, Number 175 (Wednesday, September 10, 1997)]
[Proposed Rules]
[Pages 47617-47619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23958]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 870

RIN 1029-AB93


Abandoned Mine Land Reclamation Fund Reauthorization 
Implementation

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
of the U.S. Department of the Interior is proposing to remove its 
regulation at 30 CFR 870.17. The regulation governs the scope of audits 
conducted in connection with OSM's abandoned mine land reclamation 
program.

DATES: Written comments: OSM will accept written comments on the 
proposed rule until 5 p.m., Eastern time, on November 10, 1997.
    Public hearings: Upon request, OSM will hold public hearings on the 
proposed rule at dates, times and locations to be announced in the 
Federal Register prior to the hearings. OSM will accept requests for 
public hearings until 5 p.m., Eastern time, on October 1, 1997. 
Individuals wishing to attend, but not testify, at any hearing should 
contact the person identified under FOR FURTHER CONTACT before the 
hearing date to verify that the hearing will be held.

ADDRESSES: Written comments: Hand-deliver or mail to the Office of 
Surface Mining Reclamation and Enforcement, Administrative Record, Room 
117, 1951 Constitution Avenue, NW., Washington, D.C. 20240.
    Electronic Mail: You may send comments through the Internet to 
OSM's Administrative Record at: <a href="/cdn-cgi/l/email-protection#f9968a948b8c959c8ab9968a948b9cd79e968f"><span class="__cf_email__" data-cfemail="6e011d031c1b020b1d2e011d031c0b40090118">[email protected]</span></a>. Copies of any 
messages received electronically will be filed with the Administrative 
Record.
    Public hearings: You may submit a request for a public hearing 
orally or in writing to the person and address specified under FOR 
FURTHER INFORMATION CONTACT. The address, date and time for any public 
hearing held will be announced prior to the hearings. Any individual 
who requires special accommodation to attend a public hearing should 
also contact the person listed under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Jim Krawchyk, Division of Compliance 
Management, Office of Surface Mining Reclamation and Enforcement, 3 
Parkway Center, Pittsburgh, PA 15220. Telephone 412-921-2676. E-mail: 
<a href="/cdn-cgi/l/email-protection#3852534a594f5b504178574b554a5d165f574e"><span class="__cf_email__" data-cfemail="b7dddcc5d6c0d4dfcef7d8c4dac5d299d0d8c1">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures
II. Background
III. Discussion of Proposed Rule and Guidelines
IV. Procedural Matters

I. Public Comment Procedures

    Written Comments: Written or electronic comments submitted on the 
proposed rule should be specific, should be confined to issues 
pertinent to the proposed rule, and should explain the reason for any 
recommended change. Where practicable, commenters should submit three 
copies of their comments. Comments received after the close of the 
comment period (see DATES) or delivered to an address other than those 
listed above (see ADDRESSES), may not

[[Page 47618]]

be considered or included in the Administrative Record for the final 
rule.
    Public hearings: OSM will hold a public hearing on the proposed 
rule upon request only. The time, date and address for any hearing will 
be announced in the Federal Register at least 7 days prior to the 
hearing.
    Any person interested in participating at a hearing should inform 
Mr. Krawchyk (see FOR FURTHER INFORMATION CONTACT), either orally or in 
writing, of the desired hearing location by 5:00 p.m., Eastern time, on 
October 1, 1997. If no one has contacted Mr. Krawchyk to express an 
interest in participating in a hearing by that date, a hearing will not 
be held. If only one person expresses an interest, a public meeting 
rather than a hearing may be held and the results included in the 
Administrative Record.
    If a hearing is held, it will continue until all persons wishing to 
testify have been heard. The hearing will be transcribed. To assist the 
transcriber and ensure an accurate record, OSM requests that each 
person who testifies at a hearing provide the transcriber with a 
written copy of his or her testimony. To assist us in preparing 
appropriate questions, we also request, if possible, that each person 
who plans to testify submit to us at the address previously specified 
for the submission of written comments (see ADDRESSES) an advance copy 
of his or her testimony.

II. Background

    On November 5, 1990, the President signed into law the Omnibus 
Budget Reconciliation Act of 1990, Public Law 101-508. Included in that 
law was the Abandoned Mine Reclamation Act of 1990 (AMRA) which amended 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 
U.S.C. 1201 et seq. On May 31, 1994, OSM published final regulations in 
the Federal Register (59 FR 28136) implementing the provisions of AMRA. 
The final regulations included a version of 30 CFR 870.17 which 
specifies who may conduct audits and whose records may be examined. The 
revision, utilizing the authority in sections 201(c), 402(d)(2) and 
413(a) of SMCRA, expanded the scope of section 870.17 to cover the 
records of all persons involved in a coal transaction, including 
permittees, operators, brokers, purchasers, and persons operating 
preparation plants and tipples, and any recipient of royalty payments 
from the coal mining operation.
    In July 1994, the National Coal Association and the American Mining 
Congress, predecessor organizations of the National Mining Association 
(NMA), filed suit challenging the regulations promulgated by OSM, 
specifically the scope of 30 CFR 870.17. On July 23, 1996, In National 
Mining Ass'n v. U.S. Department of the Interior, No. 94-1642 (D.D.C.), 
the United States District Court for the District of Columbia ruled in 
favor of OSM. NMA appealed the district court's decision to the United 
States Court of Appeals for the District of Columbia. After the parties 
engaged in court-ordered mediation, the Department of Justice, upon 
OSM's request, filed a motion to hold the case in abeyance pending new 
rulemaking to resolve the issues in dispute and the U.S. Court of 
Appeals granted the motion.
    On June 3, 1997, OSM published in the Federal Register a notice 
that it was suspending this rule (See 62 FR 30232). During the period 
of suspension, OSM continued to conduct audits of operators of surface 
coal mining operations, as necessary, under the provisions of section 
402(d)(2) of SMCRA, and 30 CFR 870.16.

III. Discussion of Proposed Rule

    OSM is not proposing to move section 870.17. In the litigation 
discussed above, the NMA raised concerns over the scope of this 
regulation. The District Court upheld OSM's final rule and granted 
summary judgment in favor of defendants. While the District Court 
acknowledged that ``Section 1232(d)(2) does not provide authority for 
audits or inspections of those not directly regulated under SMCRA,'' it 
nevertheless upheld OSM's rule on the ground that the agency has 
authority under SMCRA's general rulemaking provisions to authorize 
``broader audits and record inspections'' than those permitted by 
Section 1232(d)(2).
    NMA claims that the court erred and appealed. The NMA states that 
both OSM and the District Court are required to give effect to 
Congress' clearly expressed intent to limit the Secretary's audit 
authority to persons already ``subject to'' Title IV of SMCRA--i.e., 
coal mine operators. The NMA alleges further that SMCRA's general 
rulemaking provisions do not give OSM authority to assert audit 
jurisdiction broader in scope than that expressly provided for in the 
Act.
    The NMA also alleges that OSM's interpretation contravenes the 
Fourth Amendment of the Constitution by subjecting persons other than 
surface coal mining operators to warrantless searches of ``all books, 
papers, and other documents.''
    Although OSM does not agree with the arguments made by the NMA, it 
does recognize the serious nature of the issues raised. Given these 
concerns OSM is proposing to remove this specific rule. OSM does not 
believe that the removal will hinder its audit or collection efforts, 
however. OSM still possesses significant administrative authority, as 
well as the general audit authority in SMCRA section 402(d)(2), 30 
U.S.C. 1232(d)(2), and 30 CFR 870.16 of the Secretary's regulations. 
OSM believes that Congress specifically directed the agency to 
``conduct such audits of coal production and the payment of fees under 
[Title IV] as may be necessary to ensure full compliance with the 
provisions of this title.'' The agency will continue to carry out this 
legislative mandate.

IV. Procedural Matters

Paperwork Reduction Act

    This proposed 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 12866

    This proposed rule is not a significant rule under the criteria of 
Executive Order 12866 and has not been reviewed by the Office of 
Management and Budget.

Regulatory Flexibility Act

    The Department of the Interior pursuant to the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq., certifies this proposed rule 
will not have a significant economic effect on a substantial number of 
small entities for the same reason that the promulgation of the rule in 
1994 did not have such an impact. The particular provision being 
suspended governs the scope of audits conducted by OSM and will have no 
economic impact on small entities.

Executive Order 12988 on Civil Justice Reform

    The Department of the Interior has determined that this rule meets 
the requirements of sections (3)(a) and (3)(b)(2) of Executive Order 
12988, Civil Justice Reform.

Unfunded Mandates Reform Act

    The removal action will not impose a cost of $100 million or more 
in any given year on any governmental entity or the private sector.

National Environmental Policy Act

    This proposed rule has been reviewed by OSM, and it has been 
determined to be categorically excluded from the National Environmental 
Policy Act (NEPA) process in accordance with the Departmental Manual 
516 DM 2, Appendix 1.10.

[[Page 47619]]

    Author: The principal author of this rule is Jim Krawchyk, Office 
of Surface Mining, U.S. Department of the Interior, 3 Parkway Center, 
Pittsburgh, PA 15220.

List of Subjects in 30 CFR Part 870

    Incorporation by reference, Reporting and recordkeeping 
requirements, Surface mining, Underground mining.

    Dated: September 4, 1997.
Bob Armstrong,
Assistant Secretary for Land and Minerals Management.
    Accordingly, 30 CFR part 870 would be amended as set forth below.

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

    1. The authority citation for Part 870 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-
34.


Sec. 870.17   [Removed]

    2. Section 870.17 is removed.

[FR Doc. 97-23958 Filed 9-9-97; 8:45 am]
BILLING CODE 4310-05-M


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