[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: osmrules@osmre.gov. 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:
jkrawchy@osmre.gov.
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
