81 FR 31880 - Petition To Initiate Rulemaking; Ensuring That Companies With a History of Financial Insolvency, and Their Subsidiary Companies, Are Not Allowed to Self-Bond Coal Mining Operations

DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement

Federal Register Volume 81, Issue 98 (May 20, 2016)

We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), seek comments concerning a petition, submitted pursuant to the Surface Mining Control and Reclamation Act (SMCRA or the Act), requesting that we amend our self-bonding regulations to ensure that companies with a history of financial insolvency, and their subsidiary companies, are not allowed to self-bond coal mining operations. We are requesting comments on the merits of the petition and the rule changes suggested in the petition. Comments received will assist the Director of OSMRE in making the decision whether to grant or deny the petition.

[Federal Register Volume 81, Number 98 (Friday, May 20, 2016)]
[Proposed Rules]
[Pages 31880-31881]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-11755]



[[Page 31880]]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 800

[Docket ID: OSM-2016-0006; S1D1S SS08011000 SX064A000 167S180110; S2D2S 
SS08011000 SX064A000 16XS501520]


Petition To Initiate Rulemaking; Ensuring That Companies With a 
History of Financial Insolvency, and Their Subsidiary Companies, Are 
Not Allowed to Self-Bond Coal Mining Operations

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

ACTION: Notice of availability of petition to initiate rulemaking and 
request for comments on the petition.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), seek comments concerning a petition, submitted pursuant to the 
Surface Mining Control and Reclamation Act (SMCRA or the Act), 
requesting that we amend our self-bonding regulations to ensure that 
companies with a history of financial insolvency, and their subsidiary 
companies, are not allowed to self-bond coal mining operations. We are 
requesting comments on the merits of the petition and the rule changes 
suggested in the petition. Comments received will assist the Director 
of OSMRE in making the decision whether to grant or deny the petition.

DATES: Electronic or written comments: We will accept written comments 
on the petition on or before June 20, 2016.

ADDRESSES: You may submit comments by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. The 
petition has been assigned Docket ID: OSM-2016-0006. Please follow the 
online instructions for submitting comments.
    Mail/Hand-Delivery/Courier: Office of Surface Mining Reclamation 
and Enforcement, Administrative Record, Room 252 SIB, 1951 Constitution 
Avenue NW., Washington, DC 20240. Please include the Docket ID: OSM-
2016-0006.

FOR FURTHER INFORMATION CONTACT: Michael Kuhns, Division of Regulatory 
Support, 1951 Constitution Ave. NW., Washington, DC 20240; Telephone: 
202-208-2860; Email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. How does the petition process operate?
II. What action does the petition request that we take?
III. How may I view the petition and exhibits?
IV. How do I submit comments on the petition?
V. Procedural Matters and Required Determinations

I. How does the petition process operate?

    Section 201(g) of SMCRA, 30 U.S.C. 1201(g), provides that any 
person may petition the Director of OSMRE to initiate a proceeding for 
the issuance, amendment, or repeal of any regulation adopted under 
SMCRA. It also specifies that the Director shall either grant or deny 
the petition within 90 days after receipt. OSMRE's regulations at 30 
CFR 700.12 further implement this statutory provision.
    Under 30 CFR 700.12(c), the Director is required to determine if 
the petition sets forth facts, technical justification and law which 
may provide a reasonable basis for issuance, amendment or repeal of a 
regulation. If the Director determines that the petition has a 
reasonable basis, a notice shall be published in the Federal Register 
seeking comments from the public on the proposed change specified in 
the petition. This Federal Register document is the notice required by 
the regulations.
    At the close of the comment period, the Director decides to either 
grant or deny the petition, in whole or in part. We will publish notice 
of that decision in the Federal Register. If the Director grants the 
petition, we will then initiate rulemaking proceedings in which we 
again seek public comment before adopting a final rule. If the Director 
denies a petition, we notify the petitioner of the reasons for the 
decision not to initiate any rulemaking action pursuant to the 
petition. In accordance with 30 CFR 700.12(d), the Director's decision 
on a petition is a final decision for the Department, which means that 
the petitioner is not entitled to review by the Office of Hearings and 
Appeals.

II. What action does the petition request that we take?

    On March 3, 2016, we received from WildEarth Guardians a petition 
for rulemaking requesting that OSMRE amend its self-bonding regulations 
at 30 CFR 800.23 to ensure that companies with a history of financial 
insolvency, and their subsidiary companies, are not allowed to self-
bond coal mining operations. The petition claims that current rules 
allow regulatory authorities to accept self-bond guarantees from 
subsidiary companies that are technically insolvent due to the 
financial status of their parent corporations, potentially shifting the 
financial burden for substantial mine reclamation costs to American 
taxpayers in the event the companies do not have the financial 
resources to complete their mine reclamation obligations.
    In its petition, WildEarth Guardians provides draft regulatory 
language that it alleges will ensure that any entity, including non-
parent corporate guarantors, will be subject to appropriate financial 
scrutiny before being allowed to self-bond. Specifically, WildEarth 
Guardians requests that we revise our self-bonding regulations to 
define ultimate parent corporation, limit the total amount of present 
and proposed self-bonds to not exceed twenty-five (25) percent of the 
ultimate parent corporation's tangible net worth in the United States, 
and require that both the self-bonding applicant and its parent 
corporation meet any self-bonding financial conditions in 30 CFR 
800.23, including the requirement that neither have filed for 
bankruptcy in the last five (5) years.

III. How may I view the petition and exhibits?

    The petition and exhibits can be viewed and downloaded at http://www.regulations.gov. The petition has been assigned Docket ID: OSM-
2016-0006. The petition and exhibits also are available for inspection 
at the location listed under ADDRESSES.

IV. How do I submit comments on the petition?

General Guidance

    We are seeking comment on the merits of the petition and the 
requested rule changes. The energy industry is in the midst of a major 
transformation. Low domestic and global demand for coal, plentiful low-
cost shale gas and fuel switching and coal power plant retirements by 
utilities, the highest coal stockpile inventories in 25 years, 
unsuccessful business decisions, and projections of declining coal 
demand have created significant challenges for the coal industry.
    SMCRA allows States to accept self-bonds, but requires that the 
bond be sufficient to assure the completion of the reclamation plan if 
the work had to be performed by the regulatory authority in the event 
of forfeiture. 30 U.S.C. 1259(a). Eighteen States allow self-bonding 
under their regulations and eleven states currently have self-bonded 
sites. According to the most recent data from the States, outstanding 
self-bond obligations total approximately $3.86

[[Page 31881]]

billion, much of which involves non-parent guarantees.
    Several large coal companies have filed for bankruptcy protection. 
These companies provided, and several States elected to accept, over 
$2.4 billion in self-bonds to ensure that lands and waters impacted by 
coal mining were restored. Several large coal mining companies have 
recently filed for bankruptcy, raising concerns for State regulators, 
OSMRE, the Department of the Interior, Members of Congress, citizens 
and many other stakeholders.
    There is a concern about whether disturbed coal mines will be 
reclaimed by the bankrupt companies; whether the bankrupt companies 
will abandon their legal obligations to restore impacted lands and 
waters; whether the costs to restore the land and water will be shifted 
to taxpayers; and, whether the existing regulations are adequate to 
protect people, communities, and the environment as envisioned by 
Congress when it enacted SMCRA.
    OSMRE will evaluate whether the changes proposed in the rulemaking 
petition are necessary or adequate to address deficiencies in the 
current regulations and practices. We ask all States, stakeholders and 
the public to consider whether the changes proposed by petitioners, or 
other changes beyond what the petitioners have proposed, should be 
made. We also request you articulate what those changes should be and 
why they should be made.
    We will review and consider all comments submitted to the addresses 
listed above (see ADDRESSES) by the close of the comment period (see 
DATES).
    Please include the Docket ID ``OSM-2016-0006'' at the beginning of 
all written comments. We cannot ensure that comments received after the 
close of the comment period (see DATES) or at locations other than 
those listed above (see ADDRESSES) will be included in the docket or 
considered in the development of a proposed rule.

Public Availability of Comments

    Before including your address, phone number, or other personal 
identifying information in your comment, you should be aware that your 
entire comment--including your personal identifying information--may be 
made publicly available at any time. While you can ask us in your 
comment to withhold your personal identifying information from public 
review, we cannot guarantee that we will be able to do so.

Public Hearing

    We will not hold a public hearing on the petition. The petitioner 
did not request a hearing and we have determined under 30 CFR 700.12(c) 
that no hearing is necessary.

V. Procedural Matters and Required Determinations

    This notice of availability is not a proposed or final rule, 
policy, or guidance. Therefore, it is not subject to the Regulatory 
Flexibility Act, the Small Business Regulatory Enforcement Fairness 
Act, the Paperwork Reduction Act, the Unfunded Mandates Reform Act, or 
Executive Orders 12866, 13563, 12630, 13132, 12988, 13175, and 13211. 
We will conduct the analyses required by these laws and executive 
orders only if we decide to grant the petition and develop a proposed 
rule.
    In developing this notice of availability, we did not conduct or 
use a study, experiment, or survey requiring peer review under the 
Information Quality Act (Pub. L. 106-554, section 15).
    This notice of availability is not subject to the requirement to 
prepare an Environmental Assessment or Environmental Impact Statement 
under the National Environmental Policy Act (NEPA), 42 U.S.C. 
4332(2)(C), because no proposed action, as described in 40 CFR 
1508.18(a) and (b), yet exists. This notice of availability only seeks 
public comment on whether the Director should grant the petition and 
initiate rulemaking. If the Director ultimately grants the petition, we 
will prepare the appropriate NEPA compliance documents as part of the 
rulemaking process.

List of Subjects in 30 CFR Part 800

    Environmental protection, Bonding and Insurance requirements, 
Surface coal mining, Reclamation.

    Dated: May 9, 2016.
Joseph G. Pizarchik,
Director, Office of Surface Mining Reclamation and Enforcement.
[FR Doc. 2016-11755 Filed 5-19-16; 8:45 am]
 BILLING CODE 4310-05-P