[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] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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: [email protected]. 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: [email protected]. 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