FEDERAL REGISTER: 57 FR 12461 (April 10, 1992)

DEPARTMENT OF THE INTERIOR

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

30 CFR Part 700

Surface Coal Mining and Reclamation Operations; Permanent Regulatory Program; Termination of Jurisdiction

ACTION: Notice of reinstatement of suspended rule. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) of the United States Department of 

the Interior (DOI) is reinstating a suspended rule that was upheld by the U.S. Court of Appeals for the District of 

Columbia Circuit in NWF v. Lujan II. This rule had been suspended by OSM in response to the decision issued by the 

U.S. District Court for the District of Columbia in NWF v. Lujan I. The rule clarified the circumstances whereby a 

regulatory authority may terminate regulatory jurisdiction under a regulatory program approved under the Surface 

Mining Control and Reclamation Act of 1977 (the Act) for the reclaimed sites of completed surface coal mining and 

reclamation operations. 

EFFECTIVE DATE: May 11, 1992. 

FOR FURTHER INFORMATION CONTACT: Daniel Stocker, Office of Surface Mining Reclamation and 

Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue, NW., Washington, DC 20240; Telephone: 

(202) 208-2550 (Commercial) or 268-2550 (FTS). 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of Reinstated Rule 

III. Procedural Matters 

 

I. BACKGROUND 

 On November 2, 1988 (53 FR 44356), OSM promulgated the termination of jurisdiction rule at 30 CFR 700.11(d) 

which sets forth the circumstances under which regulatory jurisdiction could be terminated or reasserted over the sites of 

reclaimed surface coal mining and reclamation operations. As noted in the preamble to that rule, the general procedure 

among State regulatory authorities has been to terminate regulatory jurisdiction upon the final release of a performance 

bond for a complete surface coal mining and reclamation operation, or, where no bond was required, upon a finding that 

all reclamation had been successfully completed. In the rulemaking, OSM had decided to codify this long standing 

practice, and thereby establish a uniform standard, to clarify for regulatory authorities, the coal industry, and the public, 

the point in time at which regulatory jurisdiction could be terminated and the circumstances and methods under which a 

regulatory authority must reassert jurisdiction, and the standard OSM would use to review such terminations. (52 FR 

44356.) 

 This rule was challenged and subsequently suspended on June 3, 1991 (53 FR 25036), in response to a decision 

rendered by the U.S. District Court for the District of Columbia in National Wildlife Federation, et al., v. Manuel Lujan, 

Jr., et al., No. 88-3345 (D.D.C. August 30, 1990) (NWF v. Lujan I). 

 The suspension notice noted that it was not intended to affect the right of the Secretary of the Interior to appeal the 

district court's decision. (56 FR 25036.) The Secretary appealed and on December 10, 1991, the U.S. Court of Appeals 

for the District of Columbia Circuit issued a decision which upheld the suspended rule. National Wildlife Federation, et 

al. v. Manuel Lujan, Jr., et al., No. 90-5352 consolidated (D.C. Cir. 1991) (NWF v. Lujan II). As explained in detail 

under the following heading, II. Discussion of Reinstated Rule, this notice reinstates the suspended rule which the court 

of appeals upheld. 

 OSM will interpret the reinstated rule in accordance with the court of appeal's decision in NWF v. Lujan II, the notice 

of final rulemaking under which the rule originally was promulgated and this reinstatement notice. 

 
II. DISCUSSION OF REINSTATED RULE 

 

SECTION 700.11(d) - TERMINATION OF JURISDICTION 

 OSM is reinstating paragraph (d) of 30 CFR 700.11 as promulgated on November 2, 1988 (53 FR 44356), which sets 

forth the circumstances whereby a regulatory authority may terminate jurisdiction on surface coal mining and reclamation 

operation and the circumstances and methods under which a regulatory authority must reassert jurisdiction over such 

operation. 

 Section 700.11 (d)(1) and (d)(1)(i) provide that the regulatory authority may terminate its jurisdiction under the 

regulatory program over a reclaimed site at an initial program surface coal mining and reclamation operation, or 

increment thereof, if the regulatory authority determines in writing that all requirements imposed under the initial 

program regulations at 30 CFR chapter VII, subchapter B had been successfully completed. 

 Section 700.11 (d)(1) and (d)(1)(ii) provide that a regulatory authority may terminate its jurisdiction under the 

regulatory program over the reclaimed site of a permanent program surface coal mining and reclamation operation, or 

increment thereof, if the regulatory authority determines in writing that all requirements imposed under the applicable 

regulatory program had been successfully completed, or where a performance bond was required, final release of the 

bond has occurred. 

 Section 700.11(d)(2) defines the circumstances that would require a State regulatory authority to reassert jurisdiction 

over a site of a surface coal mining and reclamation operation because a prior (d)(1) termination of jurisdiction was found 

to be the result of fraud, collusion, or a misrepresentation of a material fact. 

 In its digest of the district court decision the D.C. court of appeals noted that the National Wildlife Federation (NWF) 

claimed that it was "premature" to terminate regulatory jurisdiction at the time of bond release. The district court 

interpreted NWF's complaint not simply as an objection to timing, but an attack on the concept of terminating 

jurisdiction. In striking down the termination of jurisdiction provisions of Section 700.11(d), the district court read the 

enforcement requirements of section 521 (a)(1) and (a)(2) of the Act as imposing "an ongoing duty * * * to correct 

violations * * * without limitation." That court also believed that allowing termination of jurisdiction would "hinder" the 

Act's goal of protecting the environment. Accordingly, the court believed it proper to interpret Congress' silence on the 

precise question of termination of jurisdiction as a call for perpetual regulation. NWF v. Lujan II, slip op. at 6. 

 In upholding section 700.11(d), the court of appeals stated "(t)he district court's opinion and NWF's claim of 

prematurity suffer from the same flaw. Section 521 cannot be read to express or assume that regulatory jurisdiction over 

a surface coal mining and reclamation operation must continue forever." Id. at 6-7. 

 The court of appeals noted that "(b)ecause the Act does not evince a clear congressional intent on the issue of whether 

regulatory jurisdiction may terminate, the question becomes whether the Secretary's regulation is based on a permissible 

interpretation of the Act." The court held that the effect of the regulation comports with the statutory scheme "in light of

the language of the regulation and the interpretation provided in both the preamble and the Secretary's brief * * *." Id. at 

8-9. 

 The court held that "the regulation itself clearly speaks to the concerns voiced by the district court and NWF. '(T)he 

regulatory authority shall reassert jurisdiction if * * * the bond release * * * was based upon fraud, collusion, or 

misrepresentation.' 30 CFR 700.11(d)(2) (emphasis added)." Id. The court also held that the regulation "strikes a 

reasonable balance between the gradual increase, due to improving technology, in what legitimately may be demanded of 

an operator, and an operator's need for certainty regarding closed sites." Id. at 10. 

 

III. PROCEDURAL MATTERS 

 

Administrative Procedure Act 

 Good cause exists under 5 U.S.C. 553(b) of the Administrative Procedure Act that this reinstatement be published 

without the general opportunity for notice and comment otherwise required by this section. As discussed above, the 

present document merely reinstates provisions previously remanded by the D.C. District Court but later upheld by the 
D.C. Circuit Court of Appeals. The requisite opportunity for notice and comment for the reinstated provisions was 

provided in the 1987 proposed rulemaking for 30 CFR 700.11(d) at 52 FR 24092. 

 

Effect of Reinstatement in Federal Program States and on Indian Lands 

 The reinstated rule applies through cross-referencing in those States with Federal programs and on Indian lands. The 

States with Federal programs are California, Georgia, Idaho, Massachusetts, Michigan, North Carolina, Oregon, Rhode 

Island, South Dakota, Tennessee, and Washington. The Federal programs for these States appear at 30 CFR parts 905, 

910, 912, 921, 922, 933, 937, 939, 941, 942, and 947, respectively. 

 The reinstated rule applies on Indian lands through cross-referencing in the Federal program for Indian lands at 30 

CFR part 750. 

 

Effect on State Programs 

 Following reinstatement of this rule, OSM will evaluate permanent State regulatory programs approved under section 

503 of the Act to determine whether any changes in these programs will be necessary. If the Director determines that 

certain State provisions should be amended in order to be made no less effective than the reinstated rule, the individual 

States will be notified in accordance with the provisions of 30 CFR 732.17. 

Executive Order 12291 

 The DOI has examined this notice of reinstatement according to the criteria of Executive Order 12291 (February 17, 

1981) and has determined that it is not major and does not require a regulatory impact analysis. The promulgation in 

1988 of this rule being reinstated was not a major action and for the same reasons, neither is this reinstatement. 

 

Regulatory Flexibility Act 

 The DOI also has determined, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that the reinstatement 

will not have significant economic impact for the same reasons that promulgation of the rule in 1988 did not have such an 

impact. 

 

Federal Paperwork Reduction Act 

 The collection of information contained in this rule have been approved by the Office of Management and Budget 

under 44 U.S.C. 3501 et seq. and assigned clearance number 1029-0094. Public reporting burden of this information is 

estimated to average one hour per response, including the time for reviewing instructions, searching existing data 

sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send 

comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for 

reducing the burden, to Information Collection Clearance Officer, Office of Surface Mining Reclamation and 

Enforcement, 1951 Constitution Ave., NW., Washington, DC 20240; and the Office of Information and Regulatory 

Affairs, Office of Management and Budget, Washington, DC 20503. 

 

National Environmental Policy Act 

 The effect of the regulation being reinstated by this notice is covered in an Environmental Assessment (EA) prepared 

by the DOI. This is the EA prepared prior to promulgation of the November 2, 1988, final rule at 30 CFR 700.11(d) 

(referenced at 53 FR 44356). This document is on file at the OSM Administrative Record, room 5131, 1100 L Street, 

NW., Washington, DC 20240. 

 

Author 

 The author of this notice of reinstatement is John A. Trelease, Office of Surface Mining Reclamation and 

Enforcement, 1951 Constitution Avenue, NW., Washington, DC 20240; Telephone (202) 208-2550 (Commercial) or 

268-2550 (FTS). 

 

LIST OF SUBJECTS IN 30 CFR PART 700 

 Administrative practice and procedure, Reporting and recordkeeping requirements, Surface mining, Underground 

mining. 

 Accordingly, 30 CFR part 700 is amended as set forth below: 
Dated: February 28, 1992. 

Harry M. Snyder, Director, Office of Surface Mining Reclamation and Enforcement. 

SUBCHAPTER A -- GENERAL 

PART 700 -- GENERAL 

 1. The authority citation for part 700 continues to read as follows: 

 Authority: Pub. L. 95-87, 91 Stat. 445 (30 U.S.C. 1201 et seq.), and Pub. L. 100-34. 

SECTION 700.11 [Amended] 

 2. Section 700.11(d) is reinstated in full. 

[FR Doc. 92-8294 Filed 4-9-92; 8:45 am] 

BILLING CODE 4310-05-M