[Federal Register Volume 63, Number 41 (Tuesday, March 3, 1998)]
[Rules and Regulations]
[Pages 10307-10309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5391]


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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: Final rule.

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

EFFECTIVE DATE: The removal of the audit regulation at 30 CFR 870.17 is 
effective on April 2, 1998.

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. Background
    II. Discussion of Final Rule and Comments
    III. Procedural Matters

I. Background

    On November 5, 1990, the President signed into law the Omnibus 
Budget Reconciliation Act of 1990, Public Law 101-508. Included in this 
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 revision 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

[[Page 10308]]

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. The 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 (62 FR 30232), OSM published in the Federal 
Register a notice that it was suspending 30 CFR 870.17. 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) or SMCRA, and 30 CFR 870.16.
    After further examination of the matter, OSM published a proposal 
in the Federal Register on September 10, 1997 (62 FR 47617) to remove 
section 870.17. The proposal was open for public comment until November 
10, 1997.

II. Discussion of Final Rule

    In this final rule OSM is removing section 870.17. In the above 
previously referenced litigation, 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 ``Sec. 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 covered 
by Sec. 1232(d)(2).
    The NMA claimed that the court erred and appealed. The NMA stated 
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 the persons already ``subject to'' Title IV--i.e., coal 
mine operators. The NMA alleged 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 alleged 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 all the arguments made by the NMA, 
it does recognize the serious nature of the issues raised. OSM also 
understands that the general audit authority is still specified in 
section 402(c) of SMCRA, and that it has broad administrative authority 
granted under section 201(c) of SMCRA. Accordingly, OSM does not 
believe that the withdrawal will hinder its audit or collection 
efforts.
    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.'' 30 U.S.C. 1232(d)(2). The agency will carry out this 
legislative mandate, as it is set out in section 402(d)(2) of SMCRA.

Comments Received

    Two parties commented on the proposed rule, agreeing with the 
proposal for removal. However, both parties raised some concerns.
    First, they pointed out that the preamble to the proposed rule in 
section III was somewhat confusing, stating that OSM was ``not 
proposing to move section 870.17.'' This was a typographical error by 
the Federal Register, which published a correction notice on Tuesday, 
November 18, 1997 (62 FR 61585). The line should have read that OSM is 
``now proposing to remove section 870.17.'' Although other segments of 
the original publication made it clear that we were proposing a 
removal, we regret that this error was made.
    Second, the commenters were concerned about a passage stating that 
Congress specifically directed OSM to conduct such audits of coal 
production and the payments of AML fees as may be necessary to ensure 
full compliance with the provisions of Title IV. The commenters stated 
that OSM should clarify its intent through this rule to limit audits to 
only operators of coal mining operations. As we have stated above, OSM 
will conduct its audits in conformance with the provisions of section 
402(d)(2) of SMCRA. That section provides for the Secretary to conduct 
audits of any surface coal mining and reclamation operation, including 
without limitation, tipples and preparation plants, as may be necessary 
in the judgment of the Secretary to ensure full and complete payment of 
fees under this title. While OSM's audit authority may be limited to 
those persons subject to the provisions of SMCRA, OSM intends to 
continue to seek voluntary information from a variety of sources so 
that it may meet its mandatory responsibility to ensure full and 
complete payment of the fees. The Secretary is also provided 
administrative subpoena authority in section 201(c) of SMCRA. OSM 
intends to utilize this authority if the need arises to obtain 
information for determining compliance, but will restrict audits to 
those entities covered in the law.

III. Procedural Matters

Effect on State Programs

    The withdrawal of this rule will have no effect on State or tribal 
AML programs. Collection of the AML reclamation fee is a purely Federal 
responsibility.

Paperwork Reduction Act

    This rule withdrawal 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 final rule is not considered significant 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 that this rule 
withdrawal does 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 withdrawn 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 
withdrawal 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 rule withdrawal 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

[[Page 10309]]

the Departmental Manual 516 DM 2, Appendix 1.10.
    Author: The principal author of this rule withdrawal 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

    Reporting and recordkeeping requirements, Surface mining, 
Underground mining.

    Dated: February 18, 1998.
Sylvia V. Baca,
Deputy Assistant Secretary for Land and Minerals Management.

    For the reasons set forth in the preamble, 30 CFR part 870 is being 
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. 98-5391 Filed 3-2-98; 8:45 am]
BILLING CODE 4310-05-M