Title 43—Public Lands: Interior--Volume 1
PART 3400—COAL MANAGEMENT: GENERAL
§ 3400.0-3   Authority.
(a) These regulations are issued under the authority of and to implement provisions of:
(1) The Mineral Leasing Act of February 25, 1920, as amended (30 U.S.C. 181 et seq.).
(2) The Mineral Leasing Act for Acquired Lands of August 7, 1947, as amended (30 U.S.C. 351-359 et seq.).
(3) The Federal Land Policy and Management Act of 1976, October 21, 1976 (43 U.S.C. 1701 et seq.).
(4) The Surface Mining Control and Reclamation Act of 1977, August 3, 1977 (30 U.S.C. 1201 et seq.).
(5) The Multiple Mineral Development Act of August 13, 1954 (30 U.S.C. 521-531 et seq.).
(6) The Department of Energy Organization Act of August 4, 1977 (42 U.S.C. 7101 et seq.).
(7) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(8) The Federal Coal Leasing Amendments Act of 1976, as amended (90 Stat. 1083-1092).
(9) The Act of October 30, 1978 (92 Stat. 2073-2075).
(b) Specific citations of authority in subsequent subparts of this Group 3400 are to authorities from which the subpart is chiefly derived or which the subpart chiefly implements.
§ 3400.0-5   Definitions.
As used in this group:
(a) Alluvial valley floor has the meaning set forth in 30 CFR Chapter VII.
(b) Authorized officer means any employee of the Bureau of Land Management delegated the authority to perform the duty described in the section in which the term is used.
(c) Bonus means that value in excess of the rentals and royalties that accrues to the United States because of coal resource ownership that is paid as part of the consideration for receiving a lease.
(d) Bypass coal means an isolated coal deposit that cannot, for the foreseeable future, be mined economically and in an environmentally sound manner either separately or as part of any mining operation other than that of the applicant for either an emergency lease under the provisions of § 3425.1-4 of this title or a lease modification.
(e) Casual use means activities which do not ordinarily lead to any appreciable disturbance or damage to lands, resources or improvements, for example, activities which do not involve use of heavy equipment or explosives and which do not involve vehicle movement except over already established roads and trails.
(f) Certificate of bidding rights means a right granted by the Secretary to apply the fair market value of a relinquished coal or other mineral lease or right to a preference right coal or other mineral lease as a credit against the bonus bid or bids on a competitive lease or leases acquired at a lease sale or sales, or as a credit against the payment required for a coal lease modification.
(g) Coal deposits mean all Federally owned coal deposits, except those held in trust for Indians.
(h) Department means the United States Department of the Interior.
(i) Director means the Director of the Bureau of Land Management unless otherwise indicated.
(j) Environmental assessment means a document prepared by the responsible Federal agency consistent with 40 CFR 1508.9.
(k) Exploration has the meaning set forth in § 3480.0-5(a)(17) of this title.
(l) Exploration license means a license issued by the authorized officer to permit the licensee to explore for coal on unleased Federal lands.
(m) Exploration plan has the meaning set forth in § 3480.0-5(a)(18) of this title.
(n) Fair market value means that amount in cash, or on terms reasonably equivalent to cash, for which in all probability the coal deposit would be sold or leased by a knowledgeable owner willing but not obligated to sell or lease to a knowledgeable purchaser who desires but is not obligated to buy or lease.
(o) Federal lands mean lands owned by the United States, without reference to how the lands were acquired or what Federal agency administers the lands, including surface estate, mineral estate and coal estate, but excluding lands held by the United States in trust for Indians, Aleuts or Eskimos.
(p) Governmental entity means a Federal or state agency or a political subdivision of a state, including a county or a municipality, or any corporation acting primarily as an agency or instrumentality of a state, which produces electrical energy for sale to the public.
(q) Interest in a lease, application or bid means: any record title interest, overriding royalty interest, working interest, operating rights or option, or any agreement covering such an interest; any claim or any prospective or future claim to an advantage or benefit from a lease; and any participation or any defined or undefined share in any increments, issues, or profits that may be derived from or that may accrue in any manner from the lease based on or pursuant to any agreement or understanding existing when the application was filed or entered into while the lease application or bid is pending. Stock ownership or stock control does not constitute an interest in a lease within the meaning of this definition. Attribution of acreage to stock ownership interests in leases is covered by § 3472.1-3(b) of this title.
(r) Lease means a Federal lease, issued under the coal leasing provisions of the mineral leasing laws, which grants the exclusive right to explore for and extract coal. In provisions of this group that also refer to Federal leases for minerals other than coal, the term Federal coal lease may apply.
(s) Lease bond means the bond or equivalent security given the Department to assure payment of all obligations under a lease, exploration license, or license to mine, and to assure that all aspects of the mining operation other than reclamation operations under a permit on a lease are conducted in conformity with the approved mining or exploration plan. This is the same as the Federal lease bond referred to in 30 CFR 742.11(a).
(t) Licensee means the holder of an exploration license.
(u) License to mine means a license issued under the provisions of part 3440 to mine coal for domestic use.
(v) Logical Mining Unit has the meaning set forth in § 3480.0-5(a)(22) of this title.
(w) Logical Mining Unit reserves has the meaning set forth in the term logical mining unit recoverable coal reserves in § 3480.0-5(a)(23) of this title.
(x) Maximum economic recovery has the meaning set forth in § 3480.0-5(a)(24) of this title.
(y) Mineral leasing laws mean the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq. ), and the Mineral Leasing Act for Acquired Lands of 1947, as amended (30 U.S.C. 351-359).
(z) Mining plan means a resource recovery and protection plan as described in § 3480.0-5(a)(39) of this title.
(aa) Mining Supervisor means the authorized officer.
(bb) Mining unit means an area containing technically recoverable coal that will feasibly support a commercial mining operation. The coal may either be Federal coal or be both Federal and non-Federal coal.
(cc) Operator means a lessee, exploration licensee or one conducting operations on a lease or exploration license under the authority of the lessee or exploration licensee.
(dd) Permit has the meaning set forth in 30 CFR Chapter VII.
(ee) Permit area has the meaning set forth in 30 CFR Chapter VII.
(ff) Public bodies means Federal and state agencies; political subdivisions of a state, including counties and municipalities; rural electric cooperatives and similar organizations; and nonprofit corporations controlled by any such entities.
(gg) Qualified surface owner means the natural person or persons (or corporation, the majority stock of which is held by a person or persons otherwise meeting the requirements of this section) who:
(1) Hold legal or equitable title to the surface of split estate lands;
(2) Have their principal place of residence on the land, or personally conduct farming or ranching operations upon a farm or ranch unit to be affected by surface mining operations; or receive directly a significant portion of their income, if any, from such farming and ranching operations; and
(3) Have met the conditions of paragraphs (gg) (1) and (2) of this section for a period of at least 3 years, except for persons who gave written consent less than 3 years after they met the requirements of both paragraphs (gg) (1) and (2) of this section. In computing the three year period the authorized officer shall include periods during which title was owned by a relative of such person by blood or marriage if, during such periods, the relative would have met the requirements of this section.
(hh) Reserves has the meaning set forth in the term recoverable coal reserves in § 3480.0-5(a)(37) of this title.
(ii) Secretary means the Secretary of the Interior.
(jj) Sole party in interest means a party who is and will be vested with all legal and equitable rights under a lease, bid, or an application for a lease. No one is a sole party in interest with respect to a lease or bid in which any other party has any interest.
(kk) Split estate means land in which the ownership of the surface is held by persons, including governmental bodies, other than the Federal government and the ownership of underlying coal is, in whole or in part, reserved to the Federal government.
(ll) Substantial legal and financial commitments means significant investments that have been made on the basis of a long-term coal contract in power plants, railroads, coal handling and preparation, extraction or storage facilities and other capital intensive activities. Costs of acquiring the coal in place or of the right to mine it without an existing mine are not sufficient to constitute substantial legal and financial commitments.
(mm) Surface coal mining operations means activities conducted on the surface of lands in connection with a surface coal mine or surface operations and surface impacts incident to an underground mine, as defined in section 701(28) of the Surface Mining Control and Reclamation Act (30 U.S.C. 1291(28).
(nn) Surface management agency means the Federal agency with jurisdiction over the surface of federally owned lands containing coal deposits, and, in the case of private surface over Federal coal, the Bureau of Land Management, except in areas designated as National Grasslands, where it means the Forest Service.
(oo) Surface Mining Officer means the regulatory authority as defined in 30 CFR Chapter VII.
(pp) Valid existing rights as used in § 3461.1 of this title is defined in 30 CFR 761.5.
(qq) Written consent means the document or documents that a qualified surface owner has signed that:
(1) Permit a coal operator to enter and commence surface mining of coal;
(2) Describe any financial or other consideration given or promised in return for the permission, including in-kind considerations;
(3) Describe any consideration given in terms of type or method of operation or reclamation for the area;
(4) Contain any supplemental or related contracts between the surface owner and any other person who is a party to the permission; and
(5) Contain a full and accurate description of the area covered by the permission.
(rr) For the purposes of section 2(a)(2)(A) of the Act:
(1) Arm's length transaction means the transfer of an interest in a lease to an entity that is not controlled by or under common control with the transferor.
(2) Bracket means a 10-year period that begins on the date that coal is first produced on or after August 4, 1976, from a lease that has not been made subject to the diligence provisions of part 3480 of this title on the date of first production.
(3) Controlled by or under common control with, based on the instruments of ownership of the voting securities of an entity, means:
(i) Ownership in excess of 50 percent constitutes control;
(ii) Ownership of 20 through 50 percent creates a presumption of control; and
(iii) Ownership of less than 20 percent creates a presumption of noncontrol.
(4) Entity means any person, association, or corporation, or any subsidiary, affiliate, or persons controlled by or under common control with such person, association, or corporation.
(5) Holds and has held means the cumulative amount of time that an entity holds any working interest in a lease on or after August 4, 1976. The holds and has held requirement of section 2(a)(2)(A) of the Act is working interest holder-specific for each lease. Working interest includes both record title interests and arrangements whereby an entity has the ability to determine when, and under what circumstances, the rights granted by the lease to develop coal will be exercised.
(6) Producing means actually severing coal. A lease is also considered producing when:
(i) The operator/leasee is processing or loading severed coal, or transporting it from the point of severance to the point of sale; or
(ii) Coal severance is temporarily interrupted in accordance with §§ 3481.4-1 through 4-4 of this chapter.
§ 3400.1   Multiple development.
(a) The granting of an exploration license, a license to mine or a lease for the exploration, development, or production of coal deposits shall preclude neither the issuance of prospecting permits or mineral leases for prospecting, development or production of deposits of other minerals in the same land with suitable stipulations for simultaneous operation, nor the allowance of applicable entries, locations, or selections of leased lands with a reservation of the mineral deposits to the United States.
(b) The presence of deposits of other minerals or the issuance of prospecting permits or mineral leases for prospecting, development or production of deposits of other minerals shall not preclude the granting of an exploration license, a license to mine or a lease for the exploration, development or production of coal deposits on the same lands with suitable stipulations for simultaneous operations.
§ 3400.2   Lands subject to leasing.
The Secretary may issue coal leases on all Federal lands except:
(a) Lands in:
(1) The National Park System;
(2) The National Wildlife Refuge System;
(3) The National Wilderness Preservation System;
(4) The National System of Trails;
(5) The National Wild and Scenic Rivers System, including study rivers designated under section 5(a) of the Wild and Scenic Rivers Act;
(6) Incorporated cities, towns, and villages;
(7) The Naval Petroleum Reserves, the National Petroleum Reserve in Alaska, and oil shale reserves; and
(8) National Recreation Areas designated by law;
(b) Tide lands, submerged coastal lands within the Continental Shelf adjacent or littoral to any part of land within the jurisdiction of the United States; and
(c) Land acquired by the United States for the development of mineral deposits, by foreclosure or otherwise for resale, or reported as surplus property pursuant to the provisions of the Surplus Property Act of 1944 (50 U.S.C. App. 1622).
§ 3400.3   Limitations on authority to lease.
§ 3400.3-1   Consent or conditions of surface management agency.
Leases for land, the surface of which is under the jurisdiction of any Federal agency other than the Department of the Interior, may be issued only with the consent of the head or other appropriate official of the other agency having jurisdiction over the lands containing the coal deposits, and subject to such conditions as that officer may prescribe to insure the use and protection of the lands for the primary purpose for which they were acquired or are being administered.
§ 3400.3-2   Department of Defense lands.
The Secretary may issue leases with the consent of the Secretary of Defense on acquired lands set apart for military or naval purposes only if the leases are issued to a governmental entity which:
(a) Produces electrical energy for sale to the public;
(b) Is located in the state in which the leased lands are located; and
(c) Has production facilities in that state, and will use the coal produced from the lease within that state.
§ 3400.3-3   Department of Agriculture lands.
Subject to the provisions of § 3400.3-1, the Secretary may issue leases that authorize surface coal mining operations on Federal lands within the National Forest System, provided that such leases may not be issued on lands within a national forest unless the tract is assessed to be acceptable for all or certain stipulated methods of surface coal mining operations under the provisions of Criterion No. 1 in § 3461.1 of this title.
§ 3400.3-4   Trust protection lands.
The regulations in this group do not apply to the leasing and development of coal deposits held in trust by the United States for Indians. See 43 CFR 3400.0-5(o). Regulations governing those deposits are found in 25 CFR Chapter I.
§ 3400.4   Federal/state government cooperation.
(a) In order to implement the requirements of law for Federal-state cooperation in the management of Federal lands, a Department-state regional coal team shall be established for each coal production region defined pursuant to § 3400.5. The team shall consist of a Bureau of Land Management field representative for each state in the region, who will be the Bureau of Land Management State Director, or, in his absence, his designated representative; the Governor of each state included in the region or, in his absence, his designated representative; and a representative appointed by and responsible to the Director of the Bureau of Land Management. The Director's representative shall be chairperson of the team. If the region is a multi-state region under the jurisdiction of only one Bureau of Land Management State Office, each State Director shall designate a Bureau of Land Management representative for each state.
(b) Each regional coal team shall guide all phases of the coal activity planning process described in §§ 3420.3 through 3420.3-4 of this title which relate to competitive leasing in the region.
(c) The regional coal team shall also serve as the forum for Department/state consultation and cooperation in all other major Department coal management program decisions in the region, including preference right lease applications, public body and small business setaside leasing, emergency leasing and exchanges.
(d) The regional coal team recommendations on leasing levels under § 3420.2(a)(4) of this title and on regional lease sales under § 3420.3-4(g) shall be accepted except:
(1) In the case of an overriding national interest; or
(2) In the case the advice of the Governor(s) which is contrary to the recommendations of the regional coal team is accepted pursuant to § 3420.4-3(c) of this title. In cases where the regional coal team's advice is not accepted, a written explanation of the reasons for not accepting the advice shall be provided to the regional coal team and made available for public review.
(e) Additional representatives of state and Federal agencies may participate directly in team meetings or indirectly in the preparation of material to assist the team at any time at the request of the team chairperson. Participation may be solicited from state and Federal agencies with special expertise in topics considered by the team or with direct surface management responsibilities in areas potentially affected by coal management decisions. However, at every point in the deliberations, the official team spokespersons for the Bureau of Land Management and for the Governors shall be those designated under paragraph (a) of this section.
(f) If a state declines to participate under this section in the coal-related activities of the Department:
(1) The Department may take action authorized in Group 3400 of this title in a coal production region wholly within such a state without forming a regional coal team, and
(2) The Department may form a regional coal team without a representative of the Governor of such a state in any multi-state coal production region.
(g) The regional coal team will function under the public participation procedures at §§ 1784.4-2, 1784.4-3, and 1784.5 of this chapter.
§ 3400.5   Coal production regions.
The Bureau of Land Management shall establish by publication in the Federal Register coal production regions. A coal production region may be changed or its boundaries altered by publication of a notice of change in the Federal Register. Coal production regions shall be used for establishing regional leasing levels under § 3420.2 of this title. Coal production regions shall be used to establish areas in which leasing shall be conducted under § 3420.3 of this title and for other purposes of the coal management program.
§ 3400.6   Minimum comment period.
Unless otherwise required in Group 3400 of this title, a minimum period of 30 days shall be allowed for public review and comment where such review is required for Federal coal management program activities under Group 3400 of this title.