[Federal Register Volume 65, Number 110 (Wednesday, June 7, 2000)]
[Proposed Rules]
[Pages 36097-36098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14355]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 701, 724, 773, 774, 778, 842, 843, and 846

RIN 1029-AB94


Application and Permit Information Requirements; Permit 
Eligibility; Definition of Ownership and Control; the Applicant/
Violator System; Alternative Enforcement Actions

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

ACTION: Proposed rule; reopening and extension of comment period.

-----------------------------------------------------------------------

SUMMARY: On December 21, 1998 (63 FR 70580), we, the Office of Surface 
Mining (OSM), proposed a rule to amend our permanent program 
regulations for surface coal mining operations under the Surface Mining 
Control and Reclamation Act of 1977, 30 U.S.C. 1201, et seq., as 
amended (SMCRA or the Act). We are reopening the comment period for the 
proposed rule in light of a judicial decision in a case decided after 
the close of the comment period. The comment period was originally 
scheduled to close on February 19, 1999, but was subsequently extended 
to March 25, 1999 (64 FR 8763; Feb. 23, 1999), then to April 15, 1999 
(64 FR 15322; March 31, 1999), and ultimately to May 10, 1999 (64 FR 
23811; May 4, 1999). Shortly thereafter, on May 28, 1999, the U.S. 
Court of Appeals for the District of Columbia Circuit handed down a 
decision in National Mining Ass'n v. U.S. Dept. of the Interior, 177 
F.3d 1 (D.C. Cir. 1999) (NMA v. DOI II). Because we incorporated 
certain provisions and concepts into our December 21, 1998 proposed 
rule, which were later invalidated by the court, we feel it advisable 
to obtain input from the public on the effects of the appeals court's 
decision on our proposed rule. By this notice, we are reopening and 
extending the comment period for an additional 30 days to seek comments 
on the effects of the court decision on our proposed rule so that we 
can ensure that our final rule is consistent with the NMA v. DOI II 
decision.

DATES: We will accept written comments until 5 p.m., Eastern time on 
July 7, 2000. We will consider only those comments received within the 
allowed time period.

ADDRESSES: You may mail or hand-deliver comments to the Office of 
Surface Mining, Administrative Record Room 101, 1951 Constitution 
Avenue, NW., Washington, DC, 20240. You may also submit comments to OSM 
via the Internet at: [email protected]. Comments sent via the Internet 
should be in an ASCII, Word, or WordPerfect file, and you should avoid 
using special characters and any form of encryption. Please also 
include ``Attn: RIN 1029-AB94'' and your name and return address in 
your Internet message. If you do not receive a confirmation from the 
system that we have received your Internet message, contact us directly 
at (202) 208-2847.

FOR FURTHER INFORMATION CONTACT: Stephen J. McEntegart, Office of 
Surface Mining, 1951 Constitution Avenue, NW., Washington, DC, 20240. 
Telephone: (202) 208-2968; e-mail: [email protected].

SUPPLEMENTARY INFORMATION

I. Public Comment Procedures

    Written comments submitted by mail, electronically, or in person, 
should be specific, confined to issues pertinent to this reopening, and 
explain the bases for the comments. Please submit three copies of your 
comments if possible. We must stress that we will consider only 
comments which are germane to the effects of the NMA v. DOI II decision 
on our December 21, 1998 proposed rule: conversely, we will not 
consider comments which do not pertain to the effects of the court 
decision and which could have been submitted during the previous 
comment periods. All of the comments we received thus far are part of 
the rulemaking record, and we will consider both those comments and 
comments received under the new comment period associated with this 
notice before issuing a final rule. Therefore, commenters should not 
resubmit earlier comments.
    We are specifying a 30 day deadline for comments, which we believe 
is appropriate because of the limited nature of this reopening; the 
fact that the pertinent appeals court's rulings are, for the most part, 
subject to straightforward interpretation; the fact that we previously 
extended and reopened the comment period serial times for the initial 
proposed rule; and our desire to expedite promulgation of a final rule. 
In view of the above considerations, we will not extend the comment 
period beyond 30 days.

II. Summary of NMa v. DOI II as it Affects our December 21, 1998 
Proposed Rule

    In June 1997, NMA filed suit in the U.S. District Court for the 
District of Columbia, challenging the validity of our April 21, 1997, 
interim final rule (IFR) (62 FR 19450) on broad grounds. On June 15, 
1998, the district court issued a decision upholding the IFR in its 
entirety. National Mining Ass'n v. Babbitt, No. 97-1418 (AER) (D.D.C. 
June 15, 1998).
    On May 28, 1999, the U.S. Court of Appeals for the District of 
Columbia Circuit issued its decision in NMA's appeal of the district 
court's ruling. National Mining Ass'n. v. U.S. Dep't of the interior, 
177 F.3d 1 (D.C. Cir. 1999) (NMA v. DOI II). The court upheld several 
provisions of the IFR, but invalidated others. Three of the court's 
holding invalidating provisions of the IFR are pertinent to this 
reopening because we incorporated the invalidated provisions and/or 
underlying concepts into the proposed rule. Since our final rule must 
be consistent with NMA v. DOI II, we invite your comments on

[[Page 36098]]

how these three holdings affect our proposed rule. These three holdings 
are described below.
    First, the court held that ``[f]or violations of an operation that 
the applicant `has controlled' but no longer does, * * * the Congress 
authorized permit-blocking only if there is `a demonstrated pattern of 
willful violations' '' under section 510(c) of SMCRA. Id. at 5. In 
other words, if an applicant severs its ownership or control 
relationship to an operation with a current violation, OSM, in general, 
may not consider that violation in making a permit eligibility decision 
under section 510(c) of the Act. Stated differently, in addition to the 
violation being current and ongoing, the applicant must also own or 
control the operation with a violation at the time of application; if 
the ownership or control relationship has been terminated, OSM may not 
deny a permit (absent a pattern of willful violations), even if the 
violation remains current and ongoing. NMA v. DOI II, 177 F.3d at 5. 
OSM may consider such past ownership or control of operations with 
violations only in determining whether there has been a ``demonstrated 
pattern of willful violations'' warranting permanent permit 
ineligibility under section510(c).
    This holding affects 773.15(b)(3) and 773.16(a) of our proposed 
rule; therefore, we invite your comments on the effect of the court's 
ruling on these provisions.
    Second, the court found that the IFR's provision requiring permit 
denials based on indirect ownership or control of operations with 
violations is impermissibly retroactive because our 1988 ownership and 
control rule imposed a ` ``new disability,' permit ineligibility, based 
on `transactions or considerations already past.  . . .' '' Id. at 8. 
As such, the court held that the IFR is retroactive ``insofar as it 
block [sic] permits based on transactions (violations and control) 
antedating November 2, 1988, the [1988] Ownership and Control Rule's 
effective date.'' Id.
    However, the court explained that the IFR is not retroactive to the 
extent it allows permit denials when an applicant acquires control of 
an operation with an ongoing, pre-rule violation on or after the 
effective date of the 1988 ownership and control rule. Id. at n.12. 
This is so because one of the relevant transactions--assumption of 
control--will have occurred on or after November 2, 1988; as such, as 
of November 2, 1988, the applicant would be on notice that this type of 
transaction, which post-dates the effective date of the 1988 rule, 
could affect his or her eligibility to receive a permit.
    This holding affects sections 773.15(b)(3) and 773.16(a) of our 
proposed rule; therefore, we invite your comments on the effect of the 
court's ruling on these provisions.
    Finally, with regard to the IFR's suspension and rescission 
provisions relative to improvidently issued permits, the court agreed 
with OSM that section 201(c) of SMCRA, 30 U.S.C. 1211(c), expressly 
authorizes OSM to suspend or rescind improvidently issued permits. In 
addition to that express authority, the court also found that OSM 
retained ``implied'' authority to suspend or rescind improvidently 
issued permits ``because of its express authority to deny permits in 
the first instance.'' Id. at 9. However, the court decided that OSM may 
only order cessation of State-permitted operations pursuant to the 
procedures established under section 521 of SMCRA, 30 U.S.C. 1271. 
Specifically, OSM may order immediate cessation of State-permitted 
operations if those operations pose an ``imminent danger to the health 
or safety of the public, or is causing, or can reasonably be expected 
to cause significant, imminent environmental harm . . .'' SMCRA 
Sec. 521(a)(2), 30 U.S.C. 1271(a)(2). Absent these circumstances, and 
after OSM complies with the ten-day notice procedure contained in 30 
CFR 843.21(c), OSM may order cessation of a State-permitted operation 
only if it: (1) Provides a notice of violation to the permittee or his 
agent; (2) establishes an abatement period; (3) provides opportunity 
for a public hearing and (4) makes a written finding that abatement of 
the violation has not occurred within the abatement period. Id.  at 9-
10; SMCRA Sec. 521(a)(3), 30 U.S.C. 1271(a)(3). This holding affects 
section 843.21(d) of our proposed rule; therefore, we invite your 
comments on the effect of the court's ruling on these provisions.
    The court's holdings in the rest of the NMA v. DOI II litigation do 
not affect our proposed rule because either; (1) OSM prevailed on the 
particular issued; or (2) the issue has become moot in that our 
proposal does not contain a similar provision. The court decision is 
available from two commercial legal research services (Lexis and 
Westlaw), as well as from the United States Court of Appeals for the 
District of Columbia Circuit's website (Internet address: http://www.cadc.uscourt.gov). For your convenience, we are posting a copy of 
the court's decision on our website at: http//www.osmre.gov. We will 
also be happy to mail or fax you a hard copy of the decision at your 
request; please address requests to the person listed under FOR FURTHER 
INFORMATION CONTACT.

    Dated: June 1, 2000.
Kathrine L. Henry,
Acting Director, Office of Surface Mining Reclamation and Enforcement.
[FR Doc. 00-14355 Filed 6-6-00; 8:45 am]
BILLING CODE 4310-05-M