MINERALS MANAGEMENT SERVICE REGULATORY UPDATE

• Jurisdiction: United States

Federal and Indian Oil and Gas Royalty Valuation and Management Vol. 1
(Jan 1992)
CHAPTER 14B
MINERALS MANAGEMENT SERVICE REGULATORY UPDATE
Dennis Whitcomb, Cecelia D. Williams, and Holly Tomlinson
Minerals Management Service
Denver, Colorado

TABLE OF CONTENTS

SYNOPSIS

Page

I. INTRODUCTION

II. LAWS ENCOURAGING PUBLIC PARTICIPATION

III. REGULATORY PHILOSOPHY

IV. REGULATORY DEVELOPMENT AND REVIEW

V. PUBLISHED FINAL RULEMAKING

VI. PENDING FINAL RULEMAKING ACTIVITIES

VII. PENDING PROPOSED RULEMAKING ACTIVITIES

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I. INTRODUCTION

A popular Government without popular information or means of acquiring it, is but a Prologue to a Farce or a tragedy or perhaps both. Knowledge will forever govern ignorance, a people who mean to be their own Governors, must arm themselves with the power knowledge gives. James Madison¹

As observed by Professor Lawrence M. Friedman, the development of administrative law appears to be primarily a contribution of the 20th century in which the development of the administrative agency was the child of necessity. The growth of a larger and positive government meant a government that divided its labor among specialists and specialized bodies.² Within this system of numerous government agencies, the concept of an open government is essential to the health and well-being of the democratic system. To ensure that the members of the public are treated fairly through due process procedures, are provided with better access to government decision-making and information, and are furnished with a better understanding of government decision-making processes, Congress has enacted within the past 56 years several major pieces of legislation designed to promote and encourage public participation in the administration of the regulatory process.

II. LAWS ENCOURAGING PUBLIC PARTICIPATION

Federal Register Act. The evolution of increased public access to and awareness of the activities of the government regulatory process began with the Federal Register Act of 1935³ and the Administrative Procedure Act (APA), enacted in 1946.⁴ Because Congress recognized the need for a centralized and uniform system to notify the public of pending and final regulations, the Federal Register Act established a uniform system which required the filing of documents with the office of the Federal Register, the placement of documents for public inspection, the publication of documents in the Federal Register, and permanent codification of all rules in the Code of Federal Regulations. Additionally, publication in the Federal Register provided specific legal effects. Publication provides official notification of the existence of a document and its contents, establishes the text as a true copy of the original document, verifies the date of the regulation's issuance, and provides verification for acceptable evidence in a court of law.

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Administrative Procedure Act. The APA promoted public awareness of the actions taken by the Federal agencies and fair participation by the public in administrative rulemaking.⁵ Generally, the APA provided for an informal administrative process regarding tests, inspections, advisory opinions, and negotiation and settlement. Additionally, the APA provided for a formal process for rulemaking, issuance of orders, and adjudications. For proposed rulemaking, the APA requires Federal agencies to publish a notice of proposed rulemaking in the Federal Register and to provide interested persons an opportunity to submit comments regarding the proposed rule. An agency may publish a "notice of intent" or an "advanced notice of proposed rulemaking" if earlier input in the process is desired. In recent years, other laws have expanded the scope of the APA.

Government in the Sunshine Act. It was further recognized that access to government information and decision-making by the public and increased participation by the public in Government meetings provide an open arena which may increase responsiveness and accountability of government officials, provide checks and balances for the decision-making process, and generate more public critique and input into the governmental process. In 1976, Congress enacted the Government in the Sunshine Act (Sunshine Act)⁶ During this timeframe, in 1974 and again in 1976, Congress amended the Freedom of Information Act (FOIA) and created an improved right of access to government documents⁷ .

Congress intended, as stated in the Declaration of Policy and Statement of Purpose, that the Sunshine Act provide the public with as much information as possible about the decision-making process of the government while at the same time "...protecting the rights of individuals and the ability of the government to carry out its responsibilities."⁸

The Sunshine Act requires that the public have access to "...every portion of every meeting" held by an agency that is "...headed by a collegial body composed of two or more individual members." This includes meetings of the subdivisions of these agencies.⁹ This Act adopts the FOIA definition of agency which includes any executive department, military department, Governmental corporation, other establishment in the executive branch, or any independent regulatory agency.

A meeting under the Sunshine Act is defined as :

"...the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business."¹⁰

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Although the Department of the Interior (DOI) is an executive agency (Department) and, therefore, meets the first criteria, it does not meet the second criteria, as provided in the Sunshine Act, that the head of the agency is a body consisting of two or more members who are responsible for decision-making. Because the only head of the DOI is one individual, the Secretary of the Interior, the second criteria of the Sunshine Act is not met. Although the DOI is not within the purview of the Sunshine Act, bureaus, such as the MMS have frequently held public hearings to collect public comments pursuant to rulemaking activities.

Application of this Act includes all of the major regulatory agencies¹¹ and provides for ten categories of exempt information. Agencies may close meetings that concern the following: (1) national security information; (2) internal personnel rules and practices of an agency; (3) matters exempted by statute; (4) confidential commercial and financial information obtained from private parties; (5) accusations against any person of a crime or formal censuring of any person; (6) information of a personal nature when disclosure would constitute an unwarranted invasion of personal privacy; (7) investigatory files to the extent that disclosure would interfere with enforcement proceedings or other particular interests; (8) information used by an agency responsible for the regulation or supervision of financial institutions; (9) information, the disclosure of which could lead, in the case of agencies regulating certain financial institutions, to significant market speculation or financial instability of the financial institutions, and in the case of any agency, to frustration of implementation of proposed agency action; or (10) information regarding agency adjudications.¹²

Although an agency may close all or part of any meeting that likely would disclose such exempt information, an agency may choose to disregard an exemption, if it finds disclosure to be in the best interest of the public.¹³ One caveat, under exemption three, closed meetings are mandatory.¹⁴ Additional procedures of the Sunshine Act require a vote when closing meetings, public certification by designated counsel that the agency properly closed a meeting,¹⁵ a written explanation of decisions to close meetings,¹⁶ and maintenance of closed meeting transcripts or minutes that the public may obtain if the transcripts do not contain exempt information.¹⁷

Also required is an advance public announcement of the time, place, and subject matter of each agency meeting. It must be stated in the announcement whether the meeting is open or closed to the public and must provide the name and telephone number of the official designated to answer questions about the meeting.¹⁸

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Freedom of Information Act. The purpose of the FOIA is to provide access to the public to information held by the Federal agencies and to require Federal agencies to provide the fullest possible disclosure of information to the public.¹⁹ Generally, the FOIA provides that any person has a right, which is enforceable in court, of access to Federal agency records, except records, or portions of records, that are protected from disclosure by one of nine exemptions or by one of three special law enforcement record exclusions.²⁰ Exempted from the statutory requirement of the FOIA are matters that are as follows: (1) authorized under criteria established by Executive Order to be kept secret in the interest of national defense or foreign policy and are properly classified according to such Executive Order; (2) related solely to the internal personnel rules and practices of an agency; (3) exempted from disclosure by statute; (4) trade secrets and commercial or financial information obtained from a person and which is privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party, other than an agency, in litigation with the agency; (6) information about an individual contained in personnel and medical files and similar files when the disclosure of such information would constitute an unwarranted invasion of personal privacy; (7) records or information compiled for law enforcement purposes to the extent that the production of such records or information would interfere with enforcement proceedings, constitute an unwarranted...