FEDERAL REGISTER: 49 FR 38462 (September 28, 1984)

DEPARTMENT OF THE INTERIOR

AGENCY: Bureau of Indian Affairs (BIA) and Office of Surface Mining Reclamation and Enforcement (OSM)

25 CFR Part 216; 30 CFR Parts 700, 701, 710, 750, and 755

Surface Mining and Reclamation Operations; 

Federal Program for Indian Lands and Tribal-Federal Intergovernmental Agreements

ACTION: Final rule. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) promulgates a final rule which sets 

forth the requirements for surface coal mining and reclamation operations on Indian lands and which describes the roles 

of the various Federal agencies involved in the regulation of surface coal mining and reclamation operations on Indian 

lands. A new subchapter, Subchapter E, is added to 30 CFR, Chapter VII, to include the Federal Program for Indian 

Lands. Part 750 is added to include requirements for mining operations on Indian lands. A new Part 755, covering 

Tribal-Federal Intergovernmental Agreements, is added to provide for the training of Indian tribes so that if and when 

Congress authorizes Indian regulation of surface mining through Indian programs, the tribes will be able to develop tribal 

regulatory programs. 

EFFECTIVE DATE: September 28, 1984. 

FOR FURTHER INFORMATION CONTACT: James M. Kress, Office of Surface Mining, U.S. Department of the 

Interior, Room 222, 1951 Constitution Avenue, NW., Washington, D.C. 20240. Telephone: (202) 343-5361 or Willis 

Gainer, Office of Surface Mining, Western Technical Center, 1020 15th Street, Denver, Colorado, 80202. Telephone: 

(303) 837-5421. 

SUPPLEMENTARY INFORMATION: 

 This preamble is arranged as follows: 

I. Background 

II. Rules Adopted and Responses to Comments on Proposed Rules 

III. Procedural Matters 

 

I. BACKGROUND 

 The Surface Mining Control and Reclamation Act of 1977 (the Act), Pub. L. 95-87, 30 U.S.C. 1201 et seq., provides 

statutory authority for the development of regulations for surface coal mining operations. Mining on lands within the 

States is subject to a two-phase regulatory scheme: First an interim regulatory program, then a permanent regulatory 

program in which primary regulatory authority is vested in the States, or in OSM if the State does not seek or obtain 

primary regulatory authority ("primacy"). 

 Section 710 of the Act also provides for a two-phase program for the regulation by the Secretary of the Interior 

("Secretary") of surface coal mining operations on Indian lands. Section 710(c) of the Act describes the first phase and 

states: "on and after one hundred and thirty-five days from the enactment of this Act [August 3, 1977], all surface coal 

mining operations on Indian lands shall comply with requirements at least as stringent as those imposed by subsections 

515(b)(2), 515(b)(3), 515(b)(5), 515(b)(10), 515(b)(13), 515(b)(19), and 515(d) of this Act." The Department of the 

Interior issued regulations implementing these interim performance standards on December 15, 1977. They are codified 

at 25 CFR Part 216, Subpart B (42 FR 63395, December 16, 1977 and 47 FR 13327, March 30, 1982) and are similar to 

the interim program performance standards for non-Indian and non-Federal lands found in 30 CFR Part 715 (42 FR 

62639). While the interim standards applicable to Indian lands differ little from those applicable to non-Indian lands, they 

necessarily recognize certain procedures and considerations which apply only to Indian lands. Specifically, the inspection 

and enforcement procedures in 25 CFR 216.112 through 216.114 differ from those in 30 CFR Parts 720 through 723 in 

that they provide for tribal involvement in the process. 
 Section 710(d) describes the second phase for regulating mining on Indian lands. Section 710(d) requires compliance 

with sections 507, 508, 509, 510, 515, 516, 517 and 519 of the Act, "on and after 30 months from the enactment of the 

Act [February 1980]." It also requires the Secretary to incorporate the requirements of such provisions in all existing and 

new leases issued for coal on Indian lands. 

 On October 24, 1983, OSM published a proposed rule implementing the requirements of section 710(d) for mining on 

Indian lands (48 FR 49174-49183). The notice announced a 60-day comment period ending on December 23, 1983, and 

scheduled public hearings for Washington, D.C., and Denver, Colorado, on December 14, 1983. No one asked to testify 

at the public hearing in Washington, D.C.; therefore, the hearing was canceled. At the public hearing held in Denver, five 

persons testified. 

 Shortly before the comment period closed, OSM received several requests to extend the comment period from 

December 23, 1983, to January 31, 1984, and to hold a public hearing in Gallup, New Mexico. OSM extended the 

comment period on December 20, 1983 (48 FR 56244) to January 31, 1984, and scheduled the public hearing for 

January 25, 1984, in Gallup, New Mexico. Seven persons testified at the January 25th public hearing. 

 OSM sought to provide an opportunity for early and meaningful public participation during its regulatory review. To 

this end, OSM met with or reviewed comments and recommendations from the Indian tribes, representatives of coal 

mining States containing Indian lands, industry representatives and representatives of environmental organizations. All 

substantive comments were carefully considered in the rulemaking process and are addressed in this preamble. 

 The Federal program for Indian lands is similar to the Federal programs OSM implemented under section 504 of the 

Act for States not seeking primacy in that it cross-references provisions of the permanent regulatory program in 30 CFR 

Chapter VII. The final rule also resembles the Federal lands program (30 CFR Chapter VII, Subchapter D) in that it 

outlines responsibilities of agencies within the Department of the Interior, other than OSM, and takes into account the 

trust responsibilities the Department has to tribes regarding lands subject to regulation by the Act. 

 The regulations adopted today implement the sections of the Act specified in section 710(d) of the Act. In addition, 

the regulations implement other sections of the Act which are otherwise applicable either by necessary implication from 

one or more of the listed sections or because the sections are applicable to all mining. 

 The content and organization of the Federal program for Indian lands follows the permanent program regulations 

which implement the procedures and performance standards of the Act. But, as mentioned above, instead of the full text 

appearing, each section includes only a reference to the pertinent part in the permanent program regulations. Separate 

paragraphs were added for sections in which differences exist between the Federal permanent program regulations and 

the Federal program for Indian Lands. One effect of this cross-referencing to the permanent program regulations is that 

when the permanent program regulations are revised, the Federal program for Indian lands will be similarly revised. 

 The content and organization of the Federal program for Indian lands are based on the following provisions of the 

Federal permanent program regulations, 30 CFR Chapter VII: 

 

SUBCHAPTER A -- GENERAL 

 

SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING 

 

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL 

EXPLORATION SYSTEMS UNDER REGULATORY PROGRAMS 

 

SUBCHAPTER H -- SMALL OPERATOR ASSISTANCE 

 

SUBCHAPTER J -- BOND AND INSURANCE REQUIREMENTS FOR BONDING OF SURFACE COAL MINING 

AND RECLAMATION OPERATIONS 

 

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS 

 

SUBCHAPTER L -- PERMANENT PROGRAM INSPECTION AND ENFORCEMENT PROCEDURES 
 

SUBCHAPTER M -- TRAINING PROGRAM FOR BLASTERS AND MEMBERS OF BLASTING CREWS, AND 

CERTIFICATION PROGRAM FOR BLASTERS 

 Technical literature cited by OSM in the preamble to the permanent regulatory program (44 FR 14901-15309, March 

13, 1979), or in subsequent rulemaking notices revising those rules was relied upon in developing the Federal program 

for Indian lands. The reader is referred to those preambles for a discussion of the basis and purpose of permanent 

program rules referenced without substantive change in the Indian lands program. 

 

II. RULES ADOPTED AND RESPONSES TO COMMENTS ON THE PROPOSED RULES 

 

A. GENERAL COMMENTS 

 A number of commenters suggested that OSM withdraw the proposed regulations which govern surface mining and 

reclamation activities on Indian lands because they believe that OSM lacks authority to promulgate the regulations at this 

time. The commenters argued that Congress envisioned in section 710 of the Act a three-part scheme for the regulation 

of surface coal mining on Indian lands. First, a study of the question of regulation of surface mining on Indian lands was 

to be completed taking into consideration the special jurisdictional status of these lands. Second, a report was to be made 

to Congress to include proposed legislation designed to allow Indian tribes to elect to assume full regulatory authority 

over the administration and enforcement of regulation of surface coal mining on Indian lands. And third, following 

enactment of Indian lands legislation by Congress, a permanent regulatory program for the regulation of surface coal 

mining on Indian lands was to be developed by OSM that provided an opportunity for the Indian tribes to administer the 

program in appropriate circumstances. The commenters recognized, however, that section 710 provided for certain 

provisions of the Act to be applicable to coal mining operations on Indian lands pending adoption of a final regulatory 

program. In the alternative, they urged OSM to limit the scope and effect of the regulations to those provisions of the 

Act cited in sections 710 (c) and (d) therein. 

 OSM disagrees with the commenters' assertions that OSM lacks the authority to promulgate regulations governing 

surface coal mining and reclamation operations on Indian lands. Sections 710 (c) and (d) clearly require the Secretary to 

regulate mining on Indian lands. The rules adopted today implement the sections of the Act identified in section 710(d) or 

which are needed by necessary implication. They also cover sections of the Act pertaining to all surface coal mining 

operations, such as section 522(e). Section 102(a) of the Act states that "it is the purpose of this Act to establish a 

nationwide program to protect society and the environment from the adverse effects of surface coal mining operations 

(emphasis supplied)." Section 201(c)(2) provides that "the Secretary, acting through [OSM], shall publish and 

promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of this Act." 

Therefore, the Act provides OSM with ample authority to promulgate these rules. This action is consistent with the 

opinions of the District Court for the District of Columbia, In Re Surface Mining Regulation Litigation, 456 F. Supp. 

1302, 1324 (1978) and of the Court of Appeals for the District of Columbia, In Re Surface Mining Regulation Litigation, 

Civ. No. 78-2109, et seq., 32 (D.C. Cir. 1980). 

 One commenter objected to the promulgation of the regulations in final form until after they are redrafted and 

republished in the Federal Register as proposed rules. 

 OSM rejects the commenter's suggestion. The rules adopted today are well within the scope of the proposal on which 

OSM has provided the public ample opportunity to comment. 

 One commenter contended that the preamble to the proposed rule inadequately explained the basis and purpose for 

many aspects of the proposal. 

 OSM does not agree, but has nevertheless amplified these matters in the preamble published today both in general and 

in response to specific comments. 

 One commenter urged OSM to make it clear in the preamble what regulations, as revised, are part of the program and 

to include the full text of the relevant regulations. 
 OSM rejects the comment. The use of cross-referencing offers considerable advantages in convenience and cost. It 

also results in administrative simplicity in that there is one basic set of regulations for all Indian lands and Federal 

program States. The permanent program rules, besides being directly applicable on Indian lands and in Federal program 

States, provide the measure for State program approval. Thus, all regulatory programs are ultimately based on OSM's 

permanent program rules. If those rules are changed, then it automatically effects a change in programs using 

cross-referencing. The public may comment once, rather than reiterating comments each time a program is revised which 

embodies the changed requirements. 

 Numerous commenters contended that the definition of the term "Indian lands" is inadequately explained in these 

regulations. Therefore, they asserted, the applicability of the rules is unclear. 

 It is not the intent of these regulations to amend the definition of Indian lands in the Act nor to resolve the various 

disputes between and among tribes and States. Rather, OSM is responsible for enforcing the law as it exists. Congress 

provided a definition of "Indian lands" in section 701(9) of the Act, which definition appears verbatim in 30 CFR 700.5. 

The Federal program promulgated here today applies to all "Indian lands" as that term is defined in the Act. Thus, OSM 

will continue to regulate as Indian lands all lands within the exterior boundaries of Indian reservations, allotted lands, and 

all lands where either the surface or minerals are held in trust for or supervised by an Indian tribe or individual Indians. 

 One commenter recommended that OSM replace 25 CFR Part 216, Subpart B, with a new 30 CFR Part 750 

administered by OSM. The commenter also asserted that 30 CFR Part 750 should replace as well 25 CFR Part 216, 

Subpart A, which concerns coal exploration, surface coal mining permits, and mining plans on Indian lands. The 

commenter contended that centralizing all such responsibilities in OSM would streamline the regulations and simplify the 

process. In addition, the commenter suggested that 25 CFR Part 216, Subpart A, should be made applicable to severed 

mineral estates. 

 Under the rule adopted today, after OSM makes an initial administrative decision approving or disapproving a permit 

application for a surface coal mining operation as required by Part 750, then 25 CFR Part 216, Subpart B will cease to be 

applicable to that operation. The October 1983 notice did not propose to amend 25 CFR Part 216, Subpart A. That 

Subpart, which contains procedures for approval of exploration and mining plans, does not implement the Act or specify 

OSM's functions. It remains unchanged by this rulemaking. 

 One commenter stated that the tribes are independent and that they are distinguishable from States. In addition, the 

commenter contended that the regulations are a direct infringement on the tribes' rights to be recognized as legal entities. 

 OSM recognizes the difference between Indian tribes and States and the special relationship between the U.S. 

Government and the Indian tribes. All of this is evidenced by the inclusion of section 710 in the Act and OSM's 

promulgation of the Federal program for Indian lands to fulfill that congressional mandate. These rules do not diminish 

the tribes' rights to be recognized as legal entities. The rules merely implement the requirements of the Act that OSM 

regulate surface coal mining operations on Indian lands. Moreover, OSM submitted legislation to Congress on February 

17, 1984, as required by sections 710(a) and 710(b) of the Act. When and if the legislation is enacted, it would give the 

tribes the opportunity to become the regulatory authorities on Indian lands. 

 Several commenters requested that OSM clarify the somewhat confused role of the States in the regulation of coal 

mining on Indian lands. A commenter contended that the preamble to the proposed rules is inconsistent in stating that the 

proposed regulations would not grant, endorse, or revoke any State or tribal jurisdiction (48 FR 49175) and then 

proposing to make Section 843.14(c) inapplicable to Indian lands (48 FR 49178) because no State regulatory authority 

would have jurisdiction over Indian lands. The commenters argued that OSM should assume exclusive jurisdiction within 

reservation boundaries and that jurisdiction should remain with the States outside reservation boundaries. The 

commenters believed that adoption of this suggestion would avoid jurisdictional conflicts and duality of regulation. 

 The issue of jurisdiction and the role of the States is not easily resolved. Section 710(h) expressly provides that the 

Act does not change the jurisdictional status of Indian Lands. The Act makes no provision for tribes to become 

regulatory authorities. The most reasonable inference, then, is that the Secretary (through OSM) is charged with 

regulating surface coal mining operations on all Indian lands. The definition of Indian lands in Section 701(9) of the Act 

provides jurisdiction to OSM to regulate surface coal mining operations on lands outside the reservation that are held in 
trust for or supervised by an Indian Tribe. Accordingly, OSM must regulate these off-reservation lands and may not be 

constrained by any State from doing so. 

 Several commenters argued that the proposed Indian lands regulations are out of keeping with the Congressional 

intent of Section 710 of the Act. They alleged that the Congressional purpose is to allow tribes to assume full regulatory 

authority over surface mining. Commenters maintained that OSM failed to satisfy Section 710 by failing to submit the 

required reports and recommendations to Congress regarding development and implementation of legislation which 

would allow tribes to obtain primacy. One commenter asserted that the proposed rules appear to preempt the role of 

Congress under Section 710 and that the Federal program for Indian lands is contrary to prevailing Federal policy 

decisions of the Supreme Court upholding the sovereign powers of Indian Tribes. 

 The promulgation of a Federal regulatory program for surface coal mining and reclamation operations on Indian lands 

is consistent with Congressional intent of Section 710 of the Act. Promulgation of these rules has no bearing on the 

Indian lands legislative report presented to Congress. The Congress declined, when passing the Act, to give primacy to 

Indian tribes. Instead, the Secretary was charged with the responsibility to promulgate and administer the regulatory 

program on Indian lands. Congress knew that a period of time would elapse between the passage of the Act and the 

enactment of any subsequent legislation providing additional authority to Indian tribes. During this period, OSM is the 

regulatory authority. Promulgation of the Federal program for Indian lands will neither delay nor impede tribes from 

obtaining primacy; it will ensure that all mining operations on Indian lands are conducted in accordance with permanent 

program standards until tribes are given the authority to seek and obtain primacy. 

 

B. SPECIFIC REGULATORY CHANGES AND COMMENTS 

25 CFR PART 216, SUBPART B 

 In the October notice, OSM proposed to delete Subpart B of 25 CFR Part 216, the interim Indian lands program, in 

its entirety. Upon review, OSM has decided not to do so. Rather, OSM has amended the applicability provision of 

Subpart B so that the performance standards contained therein remain applicable to each surface coal mining operation 

on Indian lands until OSM issues or denies the permit in accordance with the requirements of 30 CFR Part 750. Under 

the proposal, the performance standards of Part 750 would have been applicable to all operations on Indian lands as soon 

as the program became effective. By requiring the performance standards of Part 216, Subpart B to govern until OSM 

issues or denies a permit as required by 30 CFR Part 750, OSM intends to minimize abrupt dislocations associated with 

the immediate implementation of a new regulatory program. Of course, continued authority to operate under the Federal 

program for Indian lands requires a permit application to be filed with OSM within two months. 

 Although the performance standards of 25 CFR Part 216, Subpart B will remain in place, the inspection, enforcement, 

and civil penalty provisions in Sections 216.112, 216.113, and 216.114 are removed as proposed. They are superseded 

by the provisions of 30 CFR Parts 842, 843, and 845. Because existing operations will continue to comply with the Part 

216, Subpart B performance standards rather than with those in 30 CFR Part 816, or 817, until a permit decision is made, 

use of the permanent program inspection and enforcement regulations will cause no undue hardship on non-complying 

operators. As is the case for other cross-referenced rules, having one set of uniform rules in place makes administration 

of the Act simpler and more efficient. 

SECTION 700.1 - SCOPE. 

 OSM amends the "Scope" section of the introductory subchapter in 30 CFR Chapter VII to show that the Federal 

program for Indian lands is included in Subchapter E, and that the Federal program for Indian lands cross-references 

other parts of the permanent regulatory program. 

 Section 700.1(e) One commenter requested that Section 700.1(e) be revised to read "Subchapter E of this chapter 

contains regulations that apply to surface coal mining and reclamation operations conducted on Indian lands." The 

commenter reasoned that this suggested change would avoid the wholesale incorporation of existing regulations and 

would limit the scope of the proposed regulations to those provisions of the Act specifically set forth in sections 710 (c) 

and (d). 
 OSM has accepted the commenter's suggested language in the interest of simplifying the regulations. The change does 

not, however, lessen the incorporation of permanent program regulations into the Federal program for Indian lands, since 

Part 750 makes most of those regulations applicable to Indian lands. 

SECTION 700.11 - APPLICABILITY. 

 Section 700.11 describes the applicability of the permanent regulatory program. OMS, as proposed, has amended 

Section 700.11 to delete paragraph (a)(5) thereby making 30 CFR Chapter VII applicable to surface coal mining 

operations on Indian lands. OSM received no comments on the proposed deletion of Section 700.11(a)(5). 

SECTION 701.1 - SCOPE. 

 Part 701 of the permanent regulatory program provides introductory material for the permanent regulatory program 

rules. OSM amends Section 701.1 to redesignate paragraphs (b)(3) through (b)(8) as paragraphs (b)(4) through (b)(9) 

and to add a new paragraph (b)(3) showing Subchapter E, the Federal program for Indian lands, as the program 

applicable to such lands. OSM received no comments on the proposed adoption of paragraph (b)(3). 

SECTION 701.3 - AUTHORITY. 

 Section 701.3 describes the authority of the Secretary to promulgate regulations establishing the permanent regulatory 

program. OSM amends it to include the Secretary's responsibilities on Indian lands. 

 A commenter suggested that OSM has authority only to impose permanent environmental protection standards 

(performance standards) upon operations on Indian lands. 

 OSM disagrees. The clear intent of Section 710(d) of the Act is to impose most of the programmatic aspects of a 

permanent regulatory program upon surface coal mining and reclamation operations on Indian lands. These aspects 

include permit application requirements, reclamation plan requirements, performance bonds, permit approval or denial, 

environmental protection performance standards, surface effects of underground coal mining operations, inspections and 

monitoring, and release of performance bonds or deposits. Until such time as the Congress enacts legislation allowing the 

most reasonable and efficient means for Tribes to assume the role of regulation authority, implementation of these 

regulatory aspects on Indian lands is through the establishment of a comprehensive Federal regulatory program. 

SECTION 701.4 - RESPONSIBILITY. 

 Existing Section 701.4 outlines the responsibilities of the Secretary and OSM. OSM has adopted a new paragraph (h) 

which states that Subchapter E contains the Secretary's, the Director's, and other Federal agencies' responsibilities on 

Indian lands. 

 Two commenters pointed out that proposed Section 701.4(h) failed to ascribe any responsibility to the affected Indian 

tribes in the administration of the Federal program for Indian lands. 

 A discussion of the role of affected tribes is included in the response to comments for Section 750.6, below. Specific 

responsibilities of the Bureau of Indian Affairs (BIA) and other Federal authorities are enumerated in Section 750.6. 

SECTION 701.11 - APPLICABILITY. 

 OSM amends Section 701.11 by adding a new paragraph (c). Proposed paragraph (c) paralleled the requirements for 

lands within a State and for Federal lands in Section 701.11(a) and (b). OSM has made two changes from the proposal in 

the final rule by changing the proposed first word "each" to "any," and by deleting the reference to Part 750 in Section

701.11(c) (2). 

 As mandated by Sections 701.11 and 750.11, all persons expecting to conduct surface coal mining and reclamation 

operations on Indian lands eight months after the effective date of Subchapter E (today) are required to apply within two 

months of the effective date for a permit pursuant to the requirements of the Federal program for Indian lands. OSM will 
then make the necessary findings to determine whether the permit application is in compliance with the requirements of 

the Federal program for Indian lands and issue or deny a permit based upon those findings. 

 A commenter requested that Section 701.11 expressly state that operators must comply with applicable statutory 

provisions, lease terms, etc., even during the eight-month period granted for obtaining a permit. 

 Taken in conjunction with the requirements of 25 CFR Part 216, Subpart B, which remains applicable until OSM 

makes an initial administrative decision on a permit application, Section 701.11(c) (2) defines the terms and conditions 

under which existing operations can continue to mine during the period between program implementation and issuance or 

denial of the permit. As stated in this section, those operations authorized to continue during and beyond the eight month 

period must comply with all terms and conditions of the existing authorization to mine, the requirements of the Act, 25 

CFR Part 216, and the requirements of all applicable mineral lease agreements, leases, or licenses. Because 25 CFR Part 

216, Subpart B will apply until a permit decision is made, the proposed reference to Part 750 is unnecessary. 

 A commenter suggested that OSM not adopt Section 701.11(c) because section 710 of the Act does not specifically 

authorize the Secretary to issue permits pursuant to a Federal program for Indian lands. The commenter suggested that 

Indian tribes may not recognize the validity of a permitting program and that the scope of the proposed regulations 

should be limited to the sections of the Act specified in section 710. 

 OSM has authority to require permits on Indian lands. Although section 710(d) of the Act does not list section 506 

(permits) of the Act as an applicable provision on Indian lands, the authority to require permits is necessarily inferred 

from the explicit citation in section 710(d) of the Act of sections 507 (application requirements), 508 (reclamation plan 

requirements) and 510 (permit approval or denial). Sections 507 and 508 of the Act contain all the basic requirements for 

permit applications and reclamation plans. More specifically, section 510(a) of the Act requires that "upon the basis of a 

complete mining application and reclamation plan * * * pursuant to an approved State program or Federal program 

under the provisions of this Act * * * the regulatory authority shall grant, require modification of, or deny the application 

for a permit in a reasonable time set by the regulatory authority and notify the applicant in writing." The most reasonable 

and logical means to implement the provisions of sections 507, 508, and 510 of the Act for surface coal mining and 

reclamation operations on Indian lands is through the permitting process as set forth in a Federal program for Indian 

lands. 

 One commenter stated that the proposed rules do not recognize that most operations on Indian lands are already 

subject to the requirements of section 710(d) of the Act and that requiring permit applications for those operations would 

be only a paperwork exercise. The commenter suggested language to modify Section 701.11(c) which would eliminate 

the permit application requirement. The commenter maintained that the permitting effort would be meaningless and 

impractical because most operations on Indian lands hold authorizations requiring compliance with permanent program 

requirements. The commenter stated that the existing authorizations already address all of the provisions of sections 710 

(c) and (d) of the Act and "re-permitting" would be costly and excessive to operators. The commenter suggested that 

OSM incorporate a mechanism whereby an operator could simply reference his existing approval. 

 OSM disagrees with the assertion that most existing operations on Indian lands currently hold authorizations or 

approvals issued under permanent regulatory program requirements. Effectively, what the commenter is asserting is that 

operators are satisfying the performance standards of sections 515 and 516. Many surface coal mining and reclamation 

operations on Indian lands may well be complying with most aspects of the proposed Federal program for Indian lands. 

However, section 710(d) of the Act also references the requirements of sections 507, 508, 509 and 510 of the Act. 

Permitting of existing operations is far from meaningless. It is necessary to ensure that operators have undertaken proper 

planning efforts and will continue to comply with applicable performance standards. OSM's actions in reviewing and 

scrutinizing permit applications and making permit findings provide the extra level of environmental protection that the 

Act requires. Thus, OSM disagrees with the commenter's suggestion that the re-application process is merely a 

paperwork exercise for those operations now in compliance with most of the permanent regulatory program 

requirements. 

 Although a formal application is required for each existing operation OSM will determine the type and extent of 

application necessary on a case-by-case basis. For example, for those permit applications which are filed with, and are 

being reviewed by, OSM, an application under the permanent program may take the form of a letter from the operator 

requesting that the application already on file be reviewed for compliance with the Federal program for Indian lands. In 
those instances in which the application already on file is fairly complete in meeting permanent program requirements, 

OSM anticipates only minor resubmissions or modifications of the application. On the other hand, if the application on 

file has not been prepared on accordance with the permanent regulatory program requirements, and if it has not been 

reviewed by OSM pursuant to these requirements, then OSM anticipates requiring a complete resubmission of the 

application for a permit under the Federal program for Indian lands. 

 Two commenters suggested that the language in Section 701.11(c) be changed from "shall have" to "shall be required 

to obtain." 

 OSM disagrees with the commenters' suggestion. Section 701.11(c) retains the proposed language. It tracks the other 

paragraphs of Section 701.11 and requires that authorization to mine be dependent upon a permit having been issued. 

 Another commenter suggested that the language in Section 701.11(c) be changed from "on Indian lands on or after 

eight months" to "on Indian lands on and after eight months." 

 OSM rejects the proposed change. The requirement to have a permit applies to all surface coal mining and reclamation 

operations conducted on or after eight months from this date. It is irrelevant when the operation begins or whether it is 

conducted on a date eight months in the future. 

 Two commenters requested that OSM change Section 701.11(c) (1) to state that all permit applications must have 

prior approval by the affected Indian tribes before they are approved by the Director of OSM. 

 OSM disagrees with the proposed change. The Act makes no provision for approval by an affected Indian tribe. 

However, Section 750.6(a)(2) provides for consultation with BIA during the permit application review process. BIA, in 

turn, is required to consult with the affected Tribes by Section 750.6(d)(1). 

 A commenter suggested deleting the requirement of Section 701.11(c)(1) to submit an application within two months 

of the effective date of the Federal program for Indian lands. 

 OSM disagrees with the suggested deletion. This requirement applies only to those operators who wish to continue to 

conduct existing surface coal mining operations beyond eight months from the effective date of this program. It is 

important that such operations quickly come within the purview of the permanent program. The timely filing of 

applications will allow OSM to examine the operators' plans and act on applications in a manner ensuring maximum 

protection to the environment. No unreasonable burden is imposed upon operators by this requirement which is similar to 

a requirement imposed at the outset of Federal and State programs. 

SECTION 710.11 - APPLICABILITY. 

 In the final rules adopted today, OSM has made a conforming change in 30 CFR 710.11(b), the applicability section of 

the Initial Program Regulations. The change reflects OSM's decision to retain 25 CFR Part 216, Subpart B, and allow the 

provisions contained therein to remain applicable to surface coal mining operations conducted on Indian lands until OSM 

makes an initial administrative decision on a permit application pursuant to Part 750. 

PART 750 -- REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS ON 

INDIAN LANDS 

 Part 750 contains the substantive requirements for surface coal mining and reclamation operations on Indian lands. 

SECTION 750.1 - SCOPE. 

 Section 750.1 provides a "Scope" section for the Indian lands subchapter. 

 Section 750.5 Definitions. Section 750.5 includes several definitions which are applicable only to operations on Indian 

lands. The new definitions are applicable when used in Subchapter E or for regulating mining on Indian lands when used 

in a part that has been cross-referenced in Subchapter E. 
 A definition for the term "local governmental agencies" has been added to show that references to local government 

agencies include tribal governments on Indian lands. 

 A commenter questioned whether the term "Indian mineral owner," as defined in Section 750.5, included Alaskan 

native -- Aleuts, Indians, and Eskimos -- regional and village corporations. The commenter pointed out that BIA has no 

trust responsibilities over the regional and village corporation lands, and questioned whether the State or OSM would 

regulate coal mining activities thereon if the lands fall outside the scope of these rules. 

 The only lands in Alaska which are governed by the Federal program for Indian lands are those lands within Indian 

reservations, such as the Metlakatla Reservation, and those lands held in trust for or supervised by an Indian tribe. Lands 

patented to a village corporation pursuant to the Alaska Native Claims Settlement Act, Pub. L. 92-203, 43 U.S.C. 1601

(ANCSA), in which the ANCSA corporation conveyed the land to a corporation formed under the Indian Reorganization 

Act, are outside the definition of Indian lands. Surface coal mining and reclamation operations on ANCSA village and 

regional corporation lands are therefore subject to regulation by the State of Alaska. 

 OSM has amended the definition of Indian mineral owner at Section 750.5 to indicate that lands patented to a village 

or regional corporation pursuant to the ANCSA are not "Indian lands" within the meaning of section 701(9) of the Act. 

 A commenter suggested that the rules do not recognize the role of Indian tribal governments. The commenter believed 

that the phrase "local government agencies with jurisdiction over an area or an interest in the area of proposed 

operations" inadequately describes the role of tribal governments. The commenter suggested amending the definitions by 

adding that "local government agencies" means Indian tribal governments, in addition to any county, city or township 

government. 

 OSM agrees with the commenter's suggestion that for Indian lands the term "local government agencies" should be 

expanded to include Indian tribal governments. OSM has added the suggested phrasing in Section 750.5. 

SECTION 750.6 - RESPONSIBILITIES. 

 The section sets out the responsibilities of OSM, BIA, the Bureau of Land Management (BLM), and the Minerals 

Management Service (MMS) regarding coal mining activities on Indian lands. The intent of the section is to outline 

coordination obligations for agencies having specific responsibilities for coal mining and reclamation activities on Indian 

lands. It does not establish, nor is it intended to establish the roles of agencies other than OSM. It merely enumerates the 

responsibilities in one place for the readers' convenience. 

 Several corrections and clarifications were made in Section 750.6 to ensure consistency in agency responsibility. The 

section clarifies several issues: (1) The responsibilities of BLM for coal exploration on Indian lands; (2) the role of BIA 

for consulting with the affected Indian tribes in the permitting process; (3) the role of BLM in monitoring and 

administering contract, lease, or mineral agreements, and (4) the role of OSM and BIA with respect to bonding 

responsibilities. 

 General Comments Concerning Section 750.6. A commenter contended that the description of the roles of BIA, 

OSM, and BLM failed to recognize the tribes' role as lessors. The commenter also stated that Secretarial approval and 

tribal consent are required before any lease on Indian Trust lands can be negotiated. 

 The Commenter's concern over the rule is unfounded. The section describes a procedural arrangement by which the 

BIA, OSM, and BLM, coordinate and execute their respective functions and responsibilities for coal operations on Indian 

lands. The section does not delineate in detail the relationship of the tribes to the BIA, BLM, and OSM. It recognizes the 

lead role of the BIA in the Federal-Indian trust relationship and in securing consultation with the tribes. It neither 

impedes nor interferes with the tribes' role as lessors. Nothing in the rule adopted today vitiates the role of the tribes as 

lessors or alters other statutory and regulatory prerogatives of the Secretary with respect to Indian lands. 

 Several commenters believed that proposed Section 750.6 excluded tribal involvement in the decision making process 

for the regulation of surface coal mining operations on Indian lands. The commenters argued that the proposed 

regulations reflect a significant retreat from current OSM practices with respect to tribal involvement. One commenter 

requested that OSM discuss the cooperative role of tribes. Other commenters requested that explicit provisions be made 
for a tribal right to participate in the regulatory process. Commenters suggested that OSM consult with and defer to the 

affected tribes prior to approval of any permit. Other commenters stated that the Secretary, as part of his trust 

responsibilities to the tribes, must include them in his decision making regarding the mining of coal on Indian lands. 

 One commenter recommended providing tribes the same level of participation as allowed the States under a 

permanent Federal program. Commenters asserted that if OSM merely consulted with BIA on issues involving tribal 

resources, then OSM would not be giving tribes the special consideration Congress intended. 

 OSM did not intend to diminish the tribes' participation and will continue to encourage tribal involvement regarding 

surface coal mining and reclamation operations on Indian lands. During the permit application review process, OSM 

ensures that the affected tribes receive a complete copy of the application and all revisions and amendments thereto. 

OSM encourages and actively seeks comments from the tribes during this process. OSM has also fostered this 

cooperative role through implementation of tribal-Federal cooperative agreements funded by OSM on an annual basis. 

Under these agreements OSM has: (1) Solicited input from designated tribal officials and staff concerning all phases of 

permit application review for operations on Indian lands; (2) assisted tribes in the establishment of tribal commissions or 

agencies with responsibilities for providing meaningful participation in surface coal mining regulatory activities; (3) 

provided cooperative funding for staffing of these entities; (4) provided technical training to tribal staff to assist in their 

understanding of surface coal mining regulatory issues and processes; and (5) provided tribal representatives with an 

opportunity to participate in inspection activities on all existing surface coal mines on Indian lands. 

 Further, OSM, with full approval and participation from the tribes, has developed and is implementing detailed 

technical training programs which will enhance tribal staff development and expertise in the permit application review 

process. OSM supports the efforts of tribal governments to develop tribal codes and regulations leading toward eventual 

assumption of regulatory authority by tribes for surface coal mining activities on Indian lands if and when authorized by 

Congress. OSM field offices invite tribal participation in inspection of each existing mine on Indian lands. OSM regularly 

encourages tribal input concerning technical issues and policy issues for surface coal mining regulatory activities on 

Indian lands. 

 OSM also recognizes the lead role of the BIA in the Federal-Indian trust relationship and in securing formal 

consultation with the tribes. OSM makes no attempt to change those policies. Under the Surface Mining Act, however, 

OSM is the sole regulatory authority on Indian lands and may not delegate decision making authority to the tribes. 

 One commenter asserted that Section 750.6 provides for too many Federal agencies to become involved in the 

permitting process and recommends that OSM assume all of the functions of MMS and BLM; provide for tribal 

responsibility for collecting and accounting for royalties and other income from mineral agreements; and minimize BIA 

involvement by limiting BIA's responsibilities. Another commenter suggested revising Section 750.6 to read in its 

entirety, "OSM shall be the regulatory authority on Indian lands" because the Act contains no authority for division of 

these responsibilities among agencies. 

 OSM disagrees with the commenter's suggestions to reduce or eliminate the responsibilities of other Federal agencies. 

The involvement of other Federal agencies as specified in Section 750.6 is necessary to ensure that the responsibilities of 

these agencies are carried out on Indian lands as mandated by the Act and other applicable laws. With respect to the 

commenters' other suggestions, neither the Act nor these regulations provide any authority for tribes to assume 

responsibilities, such as royalty collection, which are delegated to Federal agencies. 

 One commenter objected that proposed Section 750.6 failed to set limits which govern the amount of time reviewing 

agencies can take to review permit applications and mining plans. The commenter believed that without the imposition of 

time limits reviewing agencies could substantially delay the development of coal resources on Indian lands. 

 OSM rejects the commenter's suggestion to specify time limitations in Section 750.6 for reviewing permit applications. 

The time limits established in Subchapter G of 30 CFR Chapter VII are applicable on Indian lands and are sufficient. 

OSM processes applications as expeditiously as possible and generally notifies applicants of the typical review time 

frames far enough in advance to avoid unnecessary delays in the permit application review process. 
SECTION 750.6(a)(1). 

 Section 750.6(a)(1) states that OSM shall be the regulatory authority on Indian lands. As discussed above, a number 

of commenters inferred that OSM's assumption of the role of regulatory authority operated to diminish the rights of tribal 

governments. OSM disagrees. OSM neither intends nor believes that these rules diminish the rights of tribal governments. 

SECTION 750.6(a)(2). 

 Proposed Section 750.6(a)(2) provided that after consulting with BIA, OSM would approve, conditionally approve, 

or disapprove permit applications for surface coal mining and reclamation operations on Indian lands or revisions or 

renewals thereto, and applications for the transfer, sale or assignment of such permit rights. Final Section 750.6(a)(2) is 

adopted essentially as proposed, with the change described below. 

 A commenter suggested the inclusion of the BLM in the consultation process described in Section 750.6(a)(2) for the 

review, approval, or disapproval of permit applications because of BLM's role in coal operations on Indian lands and 

familiarity with the operator and the land involved. The commenter pointed out that BLM has the responsibility for 

exploration plans and for approving or disapproving mining plans under 25 CFR 216.7. 

 OSM agrees with the commenter, and has changed Section 750.6(a)(2) to read, "After consultation with the Bureau 

of Indian Affairs, and, as applicable, the Bureau of Land Management * * *." To the extent practicable, OSM expects to 

take into account the recommendations of the other agencies within the Department. 

SECTION 750.6(a)(3). 

 Proposed Section 750.6(a)(3) is adopted as proposed. It provides that OSM shall conduct inspection and enforcement 

activities with respect to surface coal mining and reclamation operations on Indian lands. 

 One commenter asserted that the proposed regulations wrongly assume that Federal inspection of Indian lands is 

lawful under all circumstances, and cited two cases, Donovan v. Navajo Forest Products Industries, 692 F.2d 709 (10th 

Cir. 1982) and DeCoteau v. District County Court, 420 U.S. 425, n.2 (1975), to support the objection. 

 OSM disagrees with the objection for several reasons. Section 517(b)(3) of the Act provides that authorized 

representatives of the regulatory authority, without advance notice and upon presentation of appropriate credentials: 

 (A) shall have the right of entry to, upon or through any surface mining and reclamation operations or any premises in 

which records required to be maintained under paragraph (1) of this subsection are located; and 

 (B) may at reasonable times, and without delay, have access to and copy any records, inspect any monitoring 

equipment or method of operation required under this Act. 

 The Act, therefore, expressly authorizes warrantless entries. Also, the court in the In Re Surface Mining Regulation 

Litigation, supra, held that the warrantless search provisions of the Act and the regulations are reasonable, as limited by 

the Secretary. More recently, the U.S. Supreme Court reaffirmed the right of government agents to enter upon open 

fields for the purpose of carrying out government business and stated that the government's intrusion upon open fields is 

not an "unreasonable" search proscribed by the Fourth Amendment. Oliver v. United States, No. 82-15, Slip Op. (April 

17, 1984). 

SECTION 750.6(a)(4). 

 Proposed Section 750.6(a)(4) required that OSM consult with the BIA with respect to special requirements relating to 

the protection of non-coal resources of the area affected by surface coal mining and reclamation operations, and assure 

operator compliance with such special requirements. OSM, in response to numerous comments criticizing the apparent 

lack of tribal involvement in the regulation of surface coal mining activities, has added language to this section to provide 

that OSM will consult also with the affected tribes. 
SECTION 750.6(a)(5). 

 Final Section 750.6(a)(5) provides that OSM shall consult with the BLM concerning requirements relating to the 

development, production and recovery of mineral resources on Indian Lands. It is adopted unchanged from the proposal. 

SECTION 750.6(a)(6). 

 Final Section 750.6(a)(6), which is adopted as proposed, provides that OSM shall approve environmental protection 

performance bonds and liability insurance required for surface coal mining and reclamation operations on Indian lands, 

but not the production royalty bond. The provision is intended to implement OSM's statutory responsibility under section

509 of the Act. This section has no effect on the responsibilities of other agencies in the Interior Department under 25 

CFR 216.8, which concerns the filing of performance bonds upon approval of an exploration or mining plan in 

accordance with the provisions of 25 CFR Part 216 Subpart A. However, if the performance bond filed with OSM 

adequately covers the costs of reclamation, the amount of the bond required under 25 CFR 216.8(b) may be reduced 

appropriately. 

SECTION 750.6(a)(7). 

 Final Section 750.6(a)(7) provides that OSM shall ensure compliance with the requirements of the National 

Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., with respect to permitting actions for surface coal mining and 

reclamation operations on Indian lands. It is adopted unchanged from the proposal. 

SECTION 750.6(b). 

 Final Section 750.6(b) enumerates BLM's responsibilities. Under Section 750.6(b)(1) BLM is responsible for 

receiving, reviewing and conditionally approving, approving, or disapproving exploration plans and mining plans as 

provided in 25 CFR Chapter I, or specific Indian mineral agreements. Final Section 750.6(b)(2) is identical to the 

proposed section. It establishes that BLM is responsible for administering and conducting inspection and enforcement for 

coal exploration operations on Indian lands. 

 Surface coal mining operations on Indian lands may be subject to one of two types of mining plan approval 

requirements. The rule at 25 CFR 216.7 requires operators to obtain mining plan approvals if their leases for mining 

Indian coal were issued after January 18, 1969. Leases issued prior to that date may expressly require operators to 

comply with provisions of 30 CFR Part 211 "now or hereafter in force," or comparable provisions. Because 30 CFR Part 

211, which has been redesignated as 43 CFR Part 3480, requires operators to obtain mining plan approvals prior to 

conducting operations, the requirements of 43 CFR Part 3480 may be applicable to some operators under certain mineral 

agreements. 

 BLM has primary responsibility under 25 CFR Part 216, Subpart A for regulating coal exploration on Indian lands. 

BLM is responsible for receiving, reviewing and approving or disapproving coal exploration plans; administering and 

conducting inspection and enforcement with regard to requirements for coal exploration on Indian lands; and 

administering and conducting inspection and enforcement of minerals agreements, contracts, or lease terms and 

conditions. These responsibilities are recognized in 30 CFR 750.6(b)(1) and 750.6(b)(2). 

 The content of proposed Section 750.6(b)(3) has been adopted in two sections, Sections 750.6(b)(3) and (b)(4). 

Section 750.6(b)(3) provides that BLM is responsible for administering mining contract, lease or mineral agreement 

terms and conditions, as provided for in 25 CFR Chapter I or in specific Indian mineral agreements; Section 750.6(b)(4) 

states that BLM is responsible for administering and conducting inspections and enforcement of terms and conditions of 

contracts, leases, or mineral agreements for coal mining operations, including production verification and inspection of 

operations for that purpose. In making these changes, OSM has incorporated the suggestions of a commenter who stated 

that the proposed phrase "if allowed" produced confusion about BLM's enforcement responsibilities. To achieve greater 

clarity, OSM adopted the commenter's suggested language. 
SECTION 750.6(c). 

 Final Section 750.6(c) is identical to the language contained in the proposed rulemaking. It provides that MMS is 

responsible for collecting and accounting for royalties and other income on Indian mineral agreements except for annual 

rentals. 

 Two commenters requested that copies of all payments and other records be sent to the tribes at the same time they 

are submitted to the MMS under Section 750.6(c). Interested individuals may contact their respective district offices of 

MMS to obtain copies of royalty payments and other records requested. OSM neither collects nor maintains this 

information. 

SECTION 750.6(d). 

 Section 750.6(d) outlines the principal responsibilities of BIA regarding the regulation of surface coal mining 

operations on Indian lands. Final Sections 750.6(d)(1), 750.6(d)(2), and 750.6(d)(3) of the final rules set forth BIA's 

responsibility as the lead agency within the Interior Department to consult with the tribes. 

 Final Section 750.6(d)(1) provides that BIA is responsible for consulting directly with and providing representation 

for Indian mineral owners and other Indian land owners in matters relating to surface coal mining and reclamation 

operations on Indian lands. 

 Final Section 750.6(d)(2) provides that after consultation with the affected tribe, BIA is responsible for reviewing and 

making recommendations to OSM concerning permit applications, renewals, revisions or transfers of permits, sales or 

assignments of permits, permit rights or performance bonds. 

 Final Section 750.6(d)(3) provides that after consultation with the affected tribe, BIA is responsible for reviewing 

mining plans and making recommendations to the BLM pursuant to 25 CFR 216.7. 

 OSM has added language to both (d)(2) and (d)(3) clarifying that OSM expects recommendations from BIA only after 

BIA has consulted with the affected tribes. The language is intended to ensure that affected tribes have an opportunity to 

participate in the process. 

 A commenter asserted that the proposed rules relegated BIA to an advisory role with no decision making authority. 

However, the Act does not give BIA decision making authority with respect to surface coal mining operations on Indian 

lands. BIA remains responsible for the Federal-Indian Trust obligations and for representing the tribes after consulting 

with them. In addition, tribes also continue to have the opportunity to consult with any agency on an informal basis. 

 A commenter stated that the proposed role of BIA of representing the tribes in matters relating to surface coal mining 

and reclamation is too vague and must be clarified to allow for direct consultation with tribal governments. 

 OSM agrees that the role of BIA can be further clarified and accordingly has changed Section 750.6(d)(1) from the 

proposed phrase "assisting in the representation of" to the final language "consulting directly with and providing 

representation of." 

 A commenter questioned whether BIA has adequate technical staff to make the proper evaluations needed under 

Section 750.6(d). The commenter suggested that some tribes might be better staffed to make these evaluations and 

recommendations to OSM. Two commenters recommended the delegation of the responsibilities outlined under Section

750.6(d) to the tribes under cooperative agreements. 

 The Secretary lacks the authority to transfer the responsibilities listed under Section 750.6(d) to the tribes at this time. 

The Federal-Indian Trust responsibilities for land use decisions and other matters relating to surface coal mining and 

reclamation operations on Indian lands remain with BIA. OSM agrees that tribal staffs are gaining expertise that will 

better enable them to participate in the evaluations required by Section 750.6(d). All recommendations and comments of 

the affected tribes will be considered during review of permit applications. 
SECTION 750.10 - INFORMATION COLLECTION. 

 OSM received no comments on this section. 

SECTION 750.11 - PERMITS.

 Section 750.11 sets out the permit requirements for conducting surface coal mining operations on Indian lands. 

 Section 750.11(a) provides that no person may conduct surface coal mining operations on Indian lands after eight 

months following the effective date of the Federal program for Indian lands in Subchapter E unless that person has first 

obtained a permit under Part 750. The permitting requirements implement a permitting requirement on Indian lands 

comparable to those implemented on Federal lands and on lands within a State. 

 Under final Section 750.11(b), all persons conducting surface coal mining and reclamation operations on Indian lands

are required to comply with terms of the permit, the requirements of Subchapter E, and the Act. 

 One commenter stated that the inclusion of mineral agreements, leases and licenses in proposed Section 750.11(b) 

should not be covered in these regulations since these are covered by other acts and regulations, and that therefore OSM 

has no justification for including them here. 

 OSM accepts the commenter's suggestion and has not adopted the terms "mineral agreements, leases, and licenses" in 

final Section 750.11(b). OSM does not intend to assume any enforcement responsibilities for requirements of mining 

contracts, leases, or mineral agreements that are authorized and enforced exclusively under other statutes. 

 Final Section 750.11(c) authorizes existing operations to continue to operate beyond eight months from this date if (1) 

a permit application is filed with OSM within two months; (2) OSM has not yet rendered an initial administrative decision 

approving or disapproving the application; and (3) the operations are conducted in accordance with applicable standards. 

 One commenter suggested adding a new section to Section 750.11 which would provide for cooperative review of 

applications for proposed operations that contain both Indian lands and non-Indian lands. The commenter maintained that 

the new section is needed to ensure that any resulting dual permit reviews are as similar and concurrent as possible. 

 In response to the comment, OSM has included a new paragraph (d) in the final rules which provides for a 

cooperative review of permit applications whenever proposed surface coal mining operations will encompass both Indian 

lands and non-Indian lands. If the non-Indian lands are subject to the jurisdiction of a State regulatory authority, OSM 

expects that this joint effort with the State will substantially reduce potential dual permitting burdens on applicants. In 

every case OSM will make an independent decision whether to issue a permit for the Indian lands. 

 A commenter stated that the proposed regulations give no recognition or validity to permits for operations on Indian 

lands previously issued by OSM under the Act. The commenter believed that OSM should recognize valid permits and 

require no further permitting for the duration of the permit's term. 

 All operations on Indian lands will have to obtain a permit pursuant to Section 750.11. Although some existing 

surface coal mining and reclamation operations on Indian lands were reviewed under standards similar to those in OSM's 

permanent regulatory program, it is not clear that any were approved using precisely those standards. OSM will evaluate 

each application on an individual basis. At a minimum, an operator currently mining coal will have to submit an 

application for this evaluation. OSM will then determine whether the existing approval was based upon standards 

equivalent to those of the Federal Program for Indian lands and determine the extent to which additional materials and 

proceedings are necessary. 

 Two commenters suggested that the second "after" be deleted from proposed Section 750.11(a) as unnecessary. OSM 

concurs that the proposed language may have been confusing and has changed Section 750.11(a) from "after eight 

months after" to "after eight months following." 
SECTION 750.12 - PERMIT APPLICATIONS.

 Section 750.12 specifies the requirements for applications for permits, permit revisions, and permit renewals for 

surface coal mining operations on Indian lands. 

 One commenter suggested the deletion of proposed Section 750.12 in its entirety because the Secretary lacks 

authority to issue regulations beyond the scope of section 710 of the Act; the permitting requirements would expose 

operators on Indian lands to duplicative permitting and mining plan approval requirements which could render operations 

on Indian lands non-competitive; and the incorporation by reference of regulations being developed or subject to 

litigation without analysis or discussion for Indian lands makes meaningful comment impossible. 

 As discussed earlier, OSM has ample authority under the Act to promulgate these rules. Although there may be some 

overlap, the permitting requirement and mining plan approval requirements have separate statutory bases which must be 

satisfied. Hopefully, duplicative submissions can be minimized. If a permit applicant addresses all the requirements of 30 

CFR Chapter VII, Subchapter G, many of the mining plan approval requirements of 25 CFR 216.7 can also be met using 

the same information. The mining plan requires approval from the BLM which will determine the sufficiency of the 

information provided. 

 The public has had an opportunity to provide comments on all regulations applicable to surface coal mining and 

reclamation operations on Indian lands. All of the rules cross-referenced were adopted in final form prior to the 

publication of the proposed Indian Lands Program. The bases and purposes for the regulations which are incorporated by 

reference in the Federal program on Indian lands are set forth by OSM in preambles to those regulations. Although such 

regulations may at any time be subject to change, the public will be given the opportunity to comment on the effects of 

future changes. 

SECTION 750.12(a). 

 Under Section 750.12(a), each application must be accompanied by a fee. OSM is currently drafting a proposed rule 

on permit fees that will apply to Indian lands and to all other areas where OSM is the regulatory authority, including 

Federal Program States and Federal lands. Until the other rule is proposed and adopted, Section 750.12(a) will provide 

the authority for the collection of permit fees. 

 Two commenters questioned how the permit application fee is to be calculated. The commenters asserted that it is 

difficult to comment constructively on the proposed rule unless the calculation factors are known. Another commenter 

stated that placing a fee on coal mine operators on Indian lands would lessen his competitive position since similar fees 

are not presently being required for State and for Federal applications. The commenter recommended the permit fee rule 

not be adopted unless similar provisions are included for State programs, Federal lands, and Federal programs for States. 

 As noted above, permit fee regulations are currently under development by OSM. The regulations for permit fees, 

when proposed, will apply to Indian lands, and to all other lands for which OSM is the regulatory authority. An 

opportunity for comment on the proposed rules will be provided. OSM does not intend to collect permit fees for Indian 

lands until OSM promulgates the new rules. The issue of whether fees should be collected for permit application review 

performed prior to the promulgation of the permit fee rule will be addressed in that rulemaking. Final Section 750.12(a) 

differs from the proposal in order to recognize that OSM's proposed permit fee rule may include either amounts or 

methods of calculating permit fees. 

 One commenter recommended that the permit fee also cover costs of tribal involvement in the permit review process, 

including funds for tribes to conduct their own cultural resource and socio-economic impact investigations. 

 The question raised by the commenter is more appropriately addressed in the pending permit fees regulation. That rule 

will identify and solicit comments on which costs should be recovered through the permit fee. 

 Two commenters argued that the fee requirements in proposed Section 750.12(a) go beyond the authorization of 

section 507(a) of the Act. The commenters stated that fees for revisions and renewals of permit applications are 

unauthorized. 
 OSM disagrees. The intent of section 507(a) of the Act is to collect a fee for processing applications. Revisions and 

renewal are types of applications imposing processing costs. The authority for collecting such fees will be further 

addressed when OSM promulgates rules for the collection of permit fees. 

SECTION 750.12(b). 

 Under Section 750.12(b), unless OSM specifies otherwise, no less than seven copies of the application are required. 

The final rule differs from the proposal in clarifying that the application is to be filed with OSM; the proposal said only 

"with the regulatory authority." Operators who seek authorization to conduct operations on Indian lands should contact 

OSM in advance to determine the number of copies to file. 

 Two commenters requested that tribes be specified as recipients of copies of the permit application under Section

750.12(b). One commenter requested that the tribes receive three copies of the application. 

 OSM, as the regulatory authority, is responsible for the receipt and distribution of all copies of the application and will 

provide the affected tribes, BIA, and other agencies with responsibilities for Indian lands with copies of the application. 

OSM has modified Section 750.12(b) to show this. 

SECTION 750.12(c). 

 Section 750.12(c)(1) makes most of the substantive permitting requirements of 30 CFR Chapter VII, Subchapter G 

applicable on Indian lands. 

 Section 750.12(c)(2) identifies provisions of the permit processing rules that are inapplicable on Indian lands. The final 

rule uses section numbers redesignated as a result of the revision to the permitting rules (48 FR 44344, September 28, 

1983). The specific permitting provisions of Subchapter G that are inapplicable on Indian lands include Part 772 and 

Sections 773.11, 773.15(c)(3), 777.17, 778.16 (a) and (b), 785.11, and 785.12. 

 Part 772 pertains to coal exploration, which OSM does not regulate on Indian lands. Section 773.11 contains the 

general requirement to obtain a permit for lands within a State. Its counterpart in the Indian lands program is Section

750.11. 

 The rules do not require OSM to make the permit finding of Section 773.15(c)(3) or the permit application to contain 

information supporting the finding (as required by Sections 778.16 (a) and (b)) that the area is not within an area 

designated, or under study or petition for designation as unsuitable for surface mining. These are inapplicable to Indian 

lands because the Act contains no provisions for either unsuitability petitions or planning processes for unsuitability on 

Indian lands. 

 Section 777.17, pertaining to permit fees is unnecessary in view of Section 750.12(a). Likewise, Sections 785.11 and 

785.12 relate to special situations in Pennsylvania and Wyoming that are not relevant to mining on Indian lands. 

 Section 750.12(c)(3) implements two special permit processing provisions applicable on Indian lands. First, when 

permits on Indian lands are proposed to be transferred, sold or assigned, Section 511(b) of the Act requires the 

regulatory authority to approve the sale or assignment of permit rights. 

 The second special provision specifies the procedures to be followed for revisions of permits and provide guidance for 

the determination of whether a proposed permit revision is significant. Final Section 750.12(c)(3)(ii)(A) requires 

applications for revisions to contain the same information on the proposed revised operation as if it had been proposed as 

part of the initial, already permitted operation. Because revisions differ widely, it is not possible to specify precisely the 

information needed for each permit, and there is no need to limit the required information to that in the operation and 

reclamation plan. 

 Among the factors OSM will examine in determining the significance of a revision are: (1) Changes in production or 

recoverability of the coal; (2) environmental effects; (3) public interest in the operation or change; and (4) possible 

adverse impacts upon fish or wildlife, endangered species, bald or golden eagles or cultural resources. Minor editorial 

changes have been made from the proposal in final Section 750.12(c)(3)(ii)(B). 
 A commenter suggested adding previous Sections 770.12 and 776.12 to proposed Section 750.12(c)(1). Previous 

Section 770.12 is incorporated as revised in Section 773.12. However, previous Section 776.12 (now Section 772.12), 

setting forth approval requirements for coal exploration removing more than 250 tons, is inapplicable on Indian lands. 

Coal exploration on Indian lands is BLM's responsibility. 

 One commenter asked if the proposed Section 750.12(c)(1) is in conflict with 25 CFR 216.6. OSM finds no conflict 

because 25 CFR 216.6 sets forth requirements for approval of exploration plans, a responsibility that is retained by the 

BLM. 

SECTION 750.12(d). 

 Section 750.12(d) requires additional information in permit applications for mining on Indian lands to allow the 

Department to fulfill statutory obligations under other Federal laws. The requirements are comparable to those required 

for mining plans or permit applications for Federal lands. See the discussion of "permit application packages" in the 

Federal Register preamble to the Federal lands rules, 48 FR 6912 (February 16, 1983). OSM includes information 

required for compliance with the American Indian Religious Freedom Act in subparagraph (v). 

 One commenter asserted that proposed Section 750.12 relates to operator compliance with Federal and State laws, 

specifically air quality regulations and other environmental regulations, but fails to recognize tribal regulations. The 

commenter is concerned that this could preclude or even eliminate current and proposed programs designed to establish 

tribal environmental regulatory programs. 

 The purpose of Section 750.12(d) is to ensure that the permit application package contains enough information for 

OSM to determine that the proposed operation will be in compliance with applicable Federal law. It is not intended to 

preclude the separate applicability of authorized tribal rules. 

 A provision has been included as Section 750.18(e) to make explicit that 30 CFR Chapter VII does not replace or 

supersede any remedy of the Indian mineral owner or other Indian owner that is set forth in the contract or otherwise 

available at law. This provision emphasizes that the Federal Program for Indian lands is not intended to interfere with 

existing rights of Indians. It is carried over from previous 25 CFR 210.113(h). 

 A commenter requested that a clause be inserted in Section 750.12(c)(3)(i) to give tribes the first right of refusal to 

purchase the operator's interest in case of assignment. OSM disagrees. The regulations in 30 CFR Part 750 are not a 

means for assigning rights of a permit to a tribe; the Act fails to provide such authority. 

 One commenter believed that 30 CFR Chapter VII Subchapters G, K, L and M do not provide to tribal governments 

substantive roles which are equal to that afforded to State and local governments. The commenter identified fifty-eight 

provisions in the rules in which tribal governments may be accorded a role, and incorporating the terms "tribe, tribal, or 

tribal government," whenever appropriate. 

 The commenter pointed out that tribal environmental codes are already governed by 25 CFR Part 216 and should be 

preserved. 

 In response to the commenter's suggestion, OSM has added a provision under the special requirements for permits at 

Section 750.12(c)(3)(iii) to require notification of and consultation with tribal governments to the same extent as State 

and local governments. This provision reflects the role of tribal governments in the permit application process. 

 A commenter suggested that OSM solicit the affected tribes' input when reviewing revisions of mining and 

reclamation plans under Section 750.12(c)(3)(ii)(B). Tribes will be notified and given the opportunity to comment on 

significant permit revisions. Under Section 750.12(c)(3)(iii), tribes will be notified and given the opportunity to consult 

with OSM in the same manner and to the same extent as State and local governments. 

 The U.S. Fish and Wildlife Service (FWS) requested assurance that it could review and provide input into permit 

application review on Indian lands. The commenter also suggested that OSM and BLM jointly develop permit conditions 

to ensure protection of fish and wildlife values. 
 The U.S. Fish and Wildlife Service will have adequate opportunity to provide input into permit application review and 

ensure protection under the cross-referenced regulations, such as 30 CFR 773.12, 773.13 and 816.97. If needed and 

requested by the U.S. Fish and Wildlife Service, special conditions for protection of fish and wildlife values can be added 

under the existing regulations. 

 The FWS also expressed concern that by superseding 25 CFR 216.104(3), 216.108, and 216.110, the proposed rules 

weaken fish and wildlife protection measures. The commenter recommended the inclusion of a clear and more positive 

rule which would ensure that fish and wildlife protection measures are incorporated in the Federal Program. 

 All fish and wildlife protection requirements of the permanent regulatory program are now applicable to Indian lands 

by cross-referencing. Requirements such as Sections 773.12, 773.13, 773.15(c)(10), and 816.97 have been incorporated 

for Indian lands and provide the necessary level of protection for fish and wildlife values. 

 A commenter questioned the status of those portions of the regulations that are neither listed under Section

750.12(c)(1) as applicable to Indian lands nor listed under Section 750.12(c)(2) as inapplicable, such as Section 770.1. 

 The intent of OSM in Section 750.12(c)(1) is to list those requirements of Subchapter G that specifically apply to 

Indian lands and in paragraph (c)(2) to list those specific requirements that do not apply. Section 770.1 was removed 

from Subchapter G in the course of OSM's recent revision of the permanent program rules. Every remaining requirement 

of Subchapter G is encompassed by Section 750.12 (c)(1) or (c)(2). 

 Two commenters recommended that Section 778.15(b) be made applicable to Indian lands. OSM agrees with the 

commenter. Section 778.15(b) and the corresponding permit finding, Section 773.15(c)(4), are made applicable to 

surface coal mining conducted on Indian lands because the mineral and surface estates on Indian lands may be held by 

different owners. 

 One commenter suggested adding a new paragraph to Section 750.12(c) which would give an operator the option of 

processing his permit application under the rules referenced in paragraphs (c)(1) and (c)(3), or under equivalent rules 

applicable to adjacent lands. 

 OSM disagrees with the suggestion to allow an operator the option of selecting which regulatory program should 

apply to the review of the application. Although OSM generally agrees that equivalent standards should apply to similar 

environmental conditions within a geographic area, this may not be possible where different regulatory programs apply. 

 One commenter questioned the proposed listing of previous Section771.11 (since redesignated as Section 773.11) as 

inapplicable to Indian lands since this section provided for the continuation of mining operations under an existing lease 

until such time as OSM approves the new application. 

 The continuation of operations under existing approvals for Indian lands is addressed by the requirements of Section

750.11. Thus, OSM includes redesignated Section 773.11 (successor to Section 771.11) as inapplicable on Indian lands. 

Existing operations with approvals will be allowed to continue operating if the requirements of Section 750.11(c) are 

met. 

 A commenter sought a provision to keep permitting information under Section 750.12(c)(2) confidential and not of 

public record. Under Section 773.13(d)(3), which is cross-referenced, OSM provides procedures to ensure confidentiality 

of information as authorized by the Act. OSM expects to implement the confidentiality provisions of Section 773.13 on a 

case-by-case basis. 

 A commenter was concerned that the proposed rules at Section 750.12 do not include the same unsuitability criteria as 

exist under BLM's planning process for Federal lands. The commenter stated that, since there is a need to protect critical 

resources on Indian lands, the same protection should be provided for fish and wildlife resources on Indian lands as is 

provided on Federal lands. 

 The unsuitability criteria for leasing of Federal coal do not apply to Indian lands. OSM lacks the authority to extend 

these requirements to the permitting process for surface coal mining and reclamation operations on Indian lands. 
However, as mentioned previously, protection of the critical fish and wildlife resource values are ensured through 

cross-referencing of the applicable regulations to Indian lands. Also, before issuing a permit, OSM must find that 

reclamation can be accomplished, including the requirements of 30 CFR 816.97. 

 Several commenters objected to the exclusion of the American Indian Religious Freedom Act and other Federal laws 

protecting cultural resources on Indian lands. The commenters believed that OSM should determine whether sites of 

religious value would be adversely affected by the granting of a permit application. The commenter believes that Section

780.31 is inadequate to ensure protection of cultural resources on Indian lands. One commenter suggested that a 

proposed operation must show compliance with all Federal laws, including compliance with 25 CFR Part 216, and tribal 

laws regarding resource protection. 

 OSM agrees with the commenters' contentions that cultural resources on Indian lands are protected under the 

American Indian Religious Freedom Act and other Federal laws. OSM has added as Section 750.12(d)(2)(v) a 

requirement for documentation of compliance with such laws as part of the permit application package. Proposed 

Sections 750.12(d)(2) (v)-(viii) have been redesignated Sections 750.12(d)(2) (vi)-(ix) in the rule promulgated here 

today. 

 The FWS requested that proposed Section 750.12(d)(2)(viii) require documentation of appropriate studies and 

progress of informal and formal consultation with the U.S. Fish and Wildlife Service. The requirement for coordination 

with the Endangered Species Act of 1973 is included by incorporation of Sections 773.12 and 816.97 (see above 

discussion). However, OSM added language to Section 750.12(d)(2)(ix) to require special studies if needed. 

 Finally the FWS stated that it is unclear whether a programmatic section 7 consultation under the Endangered Species 

Act will be initiated by OSM for the Indian lands program and whether the draft environmental assessment of these 

proposed rules addresses the endangered species issue. 

 Consultation under the Endangered Species Act will be initiated by OSM for each permit application on Indian lands, 

as required. These rules provide the same level of protection to threatened or endangered species as OSM's permanent 

program rules. Because the promulgation of these rules is in compliance with the Endangered Species Act, no formal 

consultation is necessary. Regarding the NEPA issue, an evaluation of coordination under the Endangered Species Act 

was included in the final environmental impact statement OSM-EIS-1 (OSM, 1979) and in the Final Environmental 

Impact Statement, OSM-EIS-1: Supplement (OSM, 1983) published in January 1983 for revision of the permanent 

program rules. 

 A commenter pointed out that States do not have jurisdiction to enforce compliance with the Clean Air Act on Indian 

lands as implied under proposed Section 750.12(d)(2)(v). OSM agrees with the comment and final Section

750.12(d)(2)(vi) (proposed Section 750.12(d)(2)(v)) does not require data showing compliance with State laws. 

 Two commenters stated that the informational requirements of Section 750.12(d)(2) should be eliminated as 

unnecessary, as unauthorized by the statute, and as appearing to go beyond the requirements of other permanent program 

applications. The commenters stated that OSM has failed to set forth authority for these requirements in the preamble, 

that it will be extremely difficult to gather this information within two months of the effective date of these rules, and 

finally that the accumulation of this information is a responsibility of OSM. 

 The authority and basis for OSM to require the information listed under Section 750.12(d)(2) for operations on Indian 

lands is comparable to the requirements for mining on Federal lands. This discussion is provided in the Federal Register 

preamble to the Federal lands rules, 48 FR 6912 (February 16, 1983). 

 OSM recognizes the potential difficulty in providing all of the necessary information in two months' time. Submission 

of an application within two months will be sufficient to qualify an applicant to continue mining until OSM makes a 

decision on the application. The application will have to be augmented if necessary to completely fulfill the regulatory 

requirements. If an applicant has made a good faith effort to provide all of the permit application information necessary 

for an existing operation, OSM will exercise reason in determining whether an operator may continue to operate under 

Section 750.11(c). 

 One commenter suggested the modification of Section 750.12(d)(1) to reflect that 30 CFR Part 211 has been 

redesignated as 43 CFR Part 3480, effective September 16, 1983. OSM agrees and makes the redesignation at Section
750.12(d)(1). 

 Two commenters stated that Native American grave sites should be accorded as much protection as cemeteries under 

the regulations for unsuitability. 

 Section 522(e) of the Act is specific with regard to protection of cemeteries. Under OSM's revised definition in 30 

CFR 761.5, 48 FR 41348 (September 14, 1983), a cemetery includes any land where human bodies are interred, except 

private family burial grounds. Whether Native American grave sites qualify depends upon specific facts. However, 

through the consultation process which includes OSM, BIA, and the tribes, and during development of the cultural 

resources protection plan required by Section 750.12(d)(2)(iv), Native American grave sites not qualifying under the 

definition of a cemetery may be identified and afforded protection as recommended by the tribe and BIA. Also, under the 

requirements of Section 773.15(c)(11), OSM must make a finding that proposed operations will not adversely affect a 

private family burial ground. 

 One commenter suggested that provisions be made to include the interim unsuitability criteria developed between the 

Navajo and BIA for proposed coal, gas, and oil leases on the Navajo area. OSM does not consider the suggested criteria 

to be applicable to these rules; as discussed above, they are more appropriate to the leasing process. 

 A commenter stated that the proposed incorporation of previous Part 786, adopted in final form in Part 773, 

reinforces the appearance that tribes have been entirely excluded by the regulations from any responsible role in the 

permitting process. The commenter further argued that tribes have extensive jurisdiction to regulate the activities of 

non-Indians, with only certain exceptions. The commenter reasoned that there is no legal impediment to tribal 

participation in the permitting and regulatory program under the Act and stated his inability to understand omission of 

such participation. 

 OSM disagrees. The tribes have not been excluded from the permitting process. To the contrary, their extensive role is 

described above. However, until such time as Congress enacts legislation to allow tribes to assume the role of a 

regulatory authority, and regardless of the extensive jurisdiction of the tribes to regulate other activities of non-Indians, 

tribes lack authority under the Surface Mining Act to regulate surface coal mining and reclamation operations on Indian 

lands. The Secretary concludes that these rules give tribes as much voice in the permitting process as is possible under 

the Act. 

 A commenter requested that previous Part 786 (redesignated as Part 773 and cross-referenced in Section 750.12(c)) 

include native language requirements for notices, conferences, and hearings, and for copies of permit applications to be 

made available at places on Indian lands designated by the tribe. 

 OSM has not accepted this request. No requirement exists in the Act for posting notices in the native language. 

However, OSM will work with BIA to assure tribal involvement. Under Section 773.13, a copy of the complete permit 

application is made available for public inspection. This location usually is the nearest county seat or other governmental 

office that is open to the public within the vicinity of the mine. OSM will consult with the tribe to determine where the 

application is to be filed. In addition, copies of the application are provided to the tribe and local BIA offices. 

 A commenter requested that under previous Part 786 permit approval should be conditioned on whether all lease 

terms and tribal laws have been met and should give due consideration to tribal recommendations. The BIA is responsible 

for reviewing the application and providing BLM with recommendations on approval or disapproval of the mining plan, 

which will include a review to determine if lease terms and tribal laws have been met. BIA recommendations are also 

given to OSM on the permit application. In addition, OSM will give full consideration to tribal recommendations during 

the review process. 

 A commenter requested that previous Section 786.25 specify that nothing in the regulations may be construed as 

enlarging any rights or diminishing any duties established under tribal leases or tribal laws, and that previous Section

786.25(c) provide for permit suspension for violation of lease terms or tribal laws. 

 The Indian Lands Program does not diminish any tribal rights. In addition, Section 773.17, requires the permittee to 

comply with the terms and conditions of the approved permit. Tribes and the BIA have the opportunity to recommend 

inclusion in the permit of any lease terms and conditions which are not inconsistent with the Act. Violations of any permit 
conditions are subject to Federal enforcement under Part 843. In addition, the BIA is primarily responsible for the 

monitoring of lease terms. 

 A commenter requested that a right of entry for authorized tribal representatives should be specified in previous 

Section 786.27. Right of entry under Section 773.17 is allowed for the "authorized representative of the Secretary" on 

Indian lands. However, under Section 773.18(d)(2) the authorized representative may be accompanied by private persons 

in accordance with Part 842. Representation for tribes during inspections is also provided for under Section 750.18(d). 

 A commenter requested that previous Part 787 should specify that the tribe may participate as a party in administrative 

review proceedings (for review of permit decisions) through intervention as a matter of right. 

 Part 775 is the successor to Part 787, and is cross-referenced in Section 750.12(c)(1). In accordance with Section

775.11, any person with an interest which is or may be adversely affected by a decision on a permit may request an 

administrative hearing. The tribe clearly has such an interest and would therefore have the right to (1) request an 

administrative review hearing, (2) be notified and given the opportunity to be heard at administrative hearings, and (3) 

appeal for judicial review of the decision under Section 775.13. 

 A commenter requested that formal tribal consultation be provided for during the review process of outstanding 

permits, permit renewals, and transfer, assignment or sale of permit rights under previous Section 788. The commenter 

added that permit revisions should include formal tribal consultation as well as greater protection of cultural resource 

values. Tribes may be involved to the extent authorized by the Act. OSM previously discussed the role of tribal 

involvement in the permit review process at Section 750.6 of the preamble, above. 

 A commenter recommended that it be the right of the tribal government to enter into contractual agreements which 

remove the Department of the Interior from the direct administration of programs on the reservations and that language 

be included to preserve and allow for tribal governments to request and receive such contracts under the legal authority 

of Pub. L. 93-638, specifically Section 102. The commenter stated that inclusion of these rights is mandatory, and the 

ability to exercise the right must be explicit. 

 Neither the Act nor these rules authorize tribes to regulate surface coal mining operations on Indian lands. For the 

present, that is OSM's responsibility. Such authority may result if Congress amends the Act. On the other hand, these 

rules do not affect or diminish rights of tribes under other laws. 

SECTION 750.13 - SMALL OPERATOR ASSISTANCE.

 This section implements the small operator assistance program contained in 30 CFR Part 795 as applicable on Indian 

lands. See 48 FR 2266 (January 18, 1983). OSM received no comments on this section. 

SECTION 750.14 - LANDS DESIGNATED UNSUITABLE FOR MINING BY ACT OF CONGRESS. 

 Because section 522(e) of the Act generally prohibits mining in specified areas designated by Congress, those 

prohibitions are applicable on Indian lands. Thus, Section 750.14 makes 30 CFR Part 761, which implements section 

522(e) of the Act, applicable on Indian lands. In addition, the Secretary in the exercise of his discretionary powers, may 

decline to approve minerals agreements in areas which are unsuitable for mining. 

 One commenter recommended that OSM reconsider its interpretation of the Act regarding the applicability of section 

522 on Indian lands. The commenter reasoned that Congress intended that, unless specifically prohibited, all provisions of 

the Act are to apply to all lands underlain by coal. 

 OSM disagrees with the commenter's interpretation of the intent of Congress regarding the application of section 522 

of the Act to Indian lands. The Act contains no provisions for either unsuitability petitions or planning processes for 

unsuitability on Indian lands. Tribal governments, in cooperation with the Department, can decline to lease lands which 

they determine are unsuitable for mining. 

 One commenter stated that tribes should be allowed to establish their own processes and develop their own criteria for 

making unsuitability designations. The tribe could then make decisions on the classes of individuals, i.e. members, 
non-members, or resident-members, who can file petitions of unsuitability. 

 OSM has rejected this comment. As previously discussed, the Act does not provide such authority. 

 Another commenter suggested that proposed Section 750.14 not be adopted because the Secretary lacks authority to 

promulgate regulations under section 522 of the Act on Indian lands. OSM disagrees because section 522(e) applies to all 

surface coal mining operations. 

SECTION 750.15 - COAL EXPLORATION.

 Section 710 of the Act excludes compliance with section 512 of the Act, concerning coal exploration operations. 

Accordingly, OSM provides in Section 750.15 that coal exploration on Indian lands is governed by 25 CFR Part 216 or 

43 CFR Part 3480, whichever is applicable. 

 A commenter suggested that, to be consistent, the cross-reference in Section 750.15 should include a reference to 43 

CFR Part 3480, where applicable. OSM concurs and incorporates the suggested change in Section 750.15. 

 A commenter suggested that all data relating to exploration such as plans, drill logs, geophysical and geological 

interpretation of data, etc., should also be filed with the tribe under Section 750.15. 

 OSM has not accepted this comment. No requirement to transfer the listed information is authorized by the Act. 

SECTION 750.16 - PERFORMANCE STANDARDS. 

 OSM cross-references for Indian lands the applicable permanent program performance standards in 30 CFR Chapter 

VII, Subchapter K. The final rule cross-references nearly all of the performance standards of the permanent program, 

which includes Parts 816, 817, 819, 822, 823, 824, 827 and 828. These provisions apply to all new operations and to 

existing operations after OSM makes an initial administrative decision on a permit application. Prior to that decision, the 

performance standards in 25 CFR Part 216, Subpart B continue to apply. The proposed cross-reference to Part 826 has 

not been adopted because that part has been removed from the permanent program rules. 

 A commenter suggested that the words "or the equivalent rules applicable to adjacent lands under an approved 

program or a Federal-State cooperative agreement" be added to the end of proposed Section 750.16. The commenter 

stated that regulations are to take into account the "diversity in terrain, climate, biology, chemical and other physical 

conditions * * *." within a regional area as well as to implement national standards. The commenter argued that 

approved program standards should be allowed to apply to Indian lands in the same area. 

 The comment implied that approved State programs could be applied to operations on Indian lands. OSM cannot 

apply State program standards to Indian lands. However, OSM will consider local environmental factors within a given 

geographical area in its permitting decisions. OSM does not anticipate the application of technical standards to operations 

on Indian lands significantly different from those applied on non-Indian lands in similar areas. 

 One commenter contended that rules implementing section 515(b)(1) of the Act should be deleted because maximum 

economic recovery is a requirement of the Federal Coal Leasing Amendments Act of 1976 (90 Stat. 1085), not the 

Surface Mining Control and Reclamation Act, and has no bearing on Indian lands. 

 OSM disagrees with the position of the commenter. Section 710(d) of the Act expressly incorporates the requirements 

of section 515, including section 515(b)(1) which pertains to the maximum recovery of the solid fuel resource in a 

manner that minimizes reaffecting the land. 

SECTION 750.17 - BONDING.

 OSM cross-references all of the permanent program bonding regulations, contained in 30 CFR Chapter VII, 

Subchapter J, to make them applicable on Indian lands. The bonding regulations set out requirements for the types, 

duration and amounts of bonds, conditions of bonds, and procedures and criteria for bond forfeiture or release. OSM, as 

the regulatory authority, will issue, adjust and release bonds. 
SECTION 750.18 - INSPECTION AND ENFORCEMENT. 

 Under Section 750.18(a), inspection and enforcement must be conducted in accordance with 30 CFR Parts 842, 843 

and 845, which comprise the requirements for inspection and enforcement under the permanent regulatory program. In 

addition, a reference to 43 CFR Part 4 is included to clarify that administrative reviews and appeals are governed by the 

rules of the Department's Office of Hearings and Appeals. 

 Final Section 750.18(b) requires OSM to furnish copies of notices and orders to mineral or surface owners on whose 

land a surface coal mining operation is conducted. It also allows OSM to furnish copies to others with an interest in the 

operation or the permit area. The final rule does not require OSM to furnish notices regarding exploration on Indian 

lands, as was proposed, because the regulation of exploration activities on Indian lands is a BLM responsibility. 

 Four commenters pointed out that tribal participation and consultation is necessary with respect to inspections as 

specified in 25 CFR 216.112(e)(1); proposed Section 750.18(b) stated that tribal representatives would be invited to 

accompany Federal inspectors "if time and circumstances permit." 

 OSM concurs with the comments. Under previous 25 CFR 216.112(e)(1) the effected tribes had to be notified and 

involved in the inspection and enforcement operations of surface coal mining operations on Indian lands. OSM 

incorporates language similar to that contained in previous 25 CFR 216.112(e) into the final rule. Thus, final Section

750.18(d) requires that tribal representatives be invited to participate in all inspections on Indian lands. 

 One commenter contended that 25 CFR 216.112(e)(1) and 216.114(k) are not necessarily Indian rights protection 

provisions as was stated in the proposal, and should not be included in a final rule. OSM disagrees with the commenter's 

position and, as proposed, has incorporated the provisions in Part 750. 

 BLM recommended that the following phrasing be added to Section 750.18(c): "and pursuant to 25 CFR 216.7 and 

43 CFR 3480, where applicable, to any mineral owner or surface owner, or to any person having an interest in the coal 

mining operation." OSM has accepted the recommendation and modified Section 750.18(c) accordingly in the final rule. 

 One commenter expressed concern about whether Part 843 clearly refers to 43 CFR Part 4. To resolve this concern 

and as noted above, the final rule includes a reference to 43 CFR Part 4. 

SECTION 750.19 - BLASTER CERTIFICATION. 

 OSM has amended final Section 750.19 to recognize that blasters certified in accordance with a 

Federally-administered blaster certification program may conduct blasting on Indian lands. OSM expects to promulgate 

such a program soon. During the interim, the standards found in 30 CFR 816.61(c) and 817.61(c) are applicable. 

 One commenter recommends that because of differences among the cultural, religious, socio-economic, and 

environmental interests that must be protected, a separate Indian lands blaster certification program should be included in 

this section. 

 OSM disagrees. OSM is now in the process of promulgating rules which will establish an OSM-administered blaster 

certification program for Federal Programs, including Indian lands. OSM believes that that program will be adequate to 

ensure the protection of the interests cited by the commenter. 

SECTION 750.20 - ADOPTION OF INDIAN COAL LEASE TERMS. 

 Section 750.20 requires the Secretary to incorporate certain terms and conditions in leases of coal on Indian lands. 

Section 710(d) of the Act requires the Secretary to incorporate into all existing and new leases the requirements cited in 

that section as applicable to mining on Indian lands. Final Section 750.20(a) requires that all new leases and lease 

renewals incorporate the cited provisions. 

 Section 750.20(b) requires the Secretary to include and enforce terms requested by the tribes into leases issued after 

August 3, 1977. This provision is required by section 710(e) of the Oct. Coal-owning tribes are required to make any 
such request in writing to OSM. Final Section 750.20(b) differs slightly in phrasing from the proposal; no change in 

substance is intended. 

 Two commenters suggested the deletion of proposed Section 750.20 in its entirety. The commenters reasoned that 

since the proposed regulation purports to unilaterally amend negotiated contracts having more than one party the 

regulation is not legally defensible. The commenters stated that (1) Congress charged the Secretary to incorporate certain 

requirements of the Act into existing and new leases and (2) Congress could only have intended that the specified 

provisions be incorporated into leases in a legally permissible manner (e.g., as part of a negotiated lease amendment, or 

upon lease renewal, or as a part of a lease amendment or upon lease renewal or as a part of a lease requirement) and not 

by administrative fiat. The commenters urged OSM to restrict its rulemaking to section 710 (c) and (d) and argued that it 

is inappropriate for OSM to incorporate terms and conditions other than those specified. 

 OSM disagrees. Congress passed the Act to protect valuable natural resources. OSM is obliged to comply with the 

Congressional mandate to incorporate the requirements of section 710(d) into new and existing Indian coal leases. 

 Two commenters asked how the Secretary proposes to incorporate the requirements of section 710(d) into new and 

existing Indian coal leases. Sections 750.20 (a) and (b) are the means for incorporating applicable requirements of Indian 

coal lease terms. Additionally, the rules impose the same requirements through the permit issued to each operator. 

 One commenter contended that Section 750.20(b) should specify that the lease terms and conditions which must be 

requested by tribes are in addition to those guaranteed by law and covered by subsection (a). OSM agrees that the 

wording in proposed Section 750.20(b) needed clarification and has amended the language to include the word "also." 

 

PART 755 -- TRIBAL-FEDERAL INTERGOVERNMENTAL AGREEMENTS 

 Part 755 provides for the development, approval, and administration of Tribal-Federal Intergovernmental Agreements. 

This part provides for cooperative agreements between OSM and Indian tribes under which OSM can provide technical 

and financial assistance to allow for the training of Indian tribes and/or tribal members. This training would be in 

anticipation of tribal participation as a regulatory authority. Authority for cooperative agreements is found in the Surface 

Mining Act. The final rule is amended to clarify that funding provisions are provided for all items listed under Section

755.12. 

 Two commenters raised questions about what types of activities would be funded pursuant to Section 755.12. OSM 

provides support to fund tribal employee training; to work with OSM in the review of permit applications and to 

recommend appropriate action on permits, permit applications, inspection and enforcement, bond release or forfeiture; 

and to attend and testify at hearings. 

 Several commenters contended that the proposed provisions for Tribal-Federal Intergovernmental Agreements 

provided funding only to attend and testify at Federal hearings. 

 OSM did not intend to create the impression that funding for Tribal-Federal Intergovernmental Agreements is limited 

only to attending and testifying at Federal hearings. OSM has revised Section 755.12 to show that funding may cover 

other functions under the Agreement. Of course, specific funding for any agreement is subject to availability of 

appropriations. 

 Two commenters contended that Part 755 allows tribes to request a cooperative agreement under which the tribe may 

only "work with" OSM on regulatory functions, which is not enough. The commenters stated that a commitment should 

be made to enter into cooperative agreements with tribes which will ensure meaningful and formal tribal participation in 

the regulatory process. 

 OSM rejects the commenters' statement that tribes will not have an opportunity to have meaningful involvement in the 

regulatory process. OSM designed the Tribal-Federal Intergovernmental Agreements to allow the maximum tribal 

participation possible until such time as Congress enacts legislation to allow tribes to assume primacy over the regulation 

of surface mining on Indian lands. Three coal-producing tribes (Crow, Hopi, and Navajo) have cooperative agreements 
which afford each tribe the opportunity to have a training program for tribal employees. OSM expects future agreements 

under Part 755 to function similarly to these existing agreements. 

 Four commenters contended that section 755, Tribal-Federal Intergovernmental Agreements, lacks a statutory basis 

under the Act. 

 Section 710(c) of the Act shows the intent of Congress that Indian tribes be able to become regulatory authorities as 

soon as legislation is enacted by Congress. Thus, a tribal program to train Indian employees to assume the role of 

regulatory authorities at some time in the future is within the Secretary's authority. It should be emphasized that 

agreements under Part 755 cannot and will not transfer OSM's nondelegable responsibilities to the tribes. 

 One commenter recommended that the tribes have concurrence authority on all agreements and that tribal authorities 

should have a direct and supportive activity in all monitoring, inspecting and enforcement of laws, codes, and regulations 

on Indian lands. 

 OSM declines to accept the commenter's recommendation. Tribal-Federal Intergovernmental Agreements are not 

intended to authorize primacy for Indian tribes. They instead only provide training for tribal employees until Congress 

enacts legislation giving the tribe authority to seek primacy. OSM has no authority at this time to implement the 

commenter's suggestion. 

 

III. PROCEDURAL MATTERS 

 

Executive Order 12291 and the Regulatory Flexibility Act 

 The Department of the Interior (DOI) concludes that this rule is not a major rule requiring a regulatory impact analysis 

under Executive Order 12291. Also, DOI certifies that this rule will not have a significant economic effect on a 

substantial number of small entities and, therefore, does not require a regulatory flexibility analysis under Pub. L. 96-354. 

 The reasons underlying these determinations are as follows: The Indian Lands Program will not result in significant 

adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United 

States-based enterprises to compete with foreign-based enterprises in domestic or foreign markets; nor will it increase 

costs of prices for consumers, individual industries, Federal, State, tribal or local governmental agencies or geographic 

regions. There will be no significant demographic effects, direct costs, indirect costs, nonquantifiable costs, competitive 

effects, enforcement costs, or aggregate effects on small entities. 

 

National Environmental Policy Act 

 OSM has prepared an environmental assessment (EA) on these rules and has made a finding that they will not 

significantly affect the quality of the human environment. The EA and finding of no significant impact are available in 

OSM's Administrative Record in Room 5124, 1100 L Street, NW., Washington, D.C. 

 

Paperwork Reduction Act of 1980 

 Section 750.10 codifies OSM's conclusion that the information collection requirements contained in Part 750 and the 

remainder of these rules do not require approval of the Office of Management and Budget under 44 U.S.C. 3507 because 

there are expected to be less than ten respondents annually. 

 

Effective Date 

 The final rule is effective September 28, 1984. Under 5 U.S.C. 553(d), a rule may not be made effective less than 30 

days after publication unless, among other things, good cause exists and is published with the rule. Good cause exists to 

make the final rule immediately effective because OSM needs to begin the processing of permit applications for new and 

existing operations, including those which seek to enter new areas on Indian lands in the near future. Because (1) 25 CFR 

Part 216, Subpart B will continue to apply to existing operations until they receive a new permit and (2) existing 

operations will be able to continue to operate for eight months and beyond that time if a permit application is filed within 

two months, no person will be adversely affected by the immediate applicability of 30 CFR Parts 750 and 755. 

 
LIST OF SUBJECTS 

 

25 CFR Part 216 

 Environmental protection, Indian lands, Mineral resources, Mines. 

 

30 CFR Part 700 

 Administrative practices and procedure, Coal mining, Surface mining, Underground mining, Reporting and 

recordkeeping requirements. 

 

30 CFR Part 701 

 Coal mining, Law enforcement, Surface mining, Underground mining. 

 

30 CFR Part 710 

 Coal mining, Law enforcement, Public health, Safety, Surface mining, Underground mining. 

 

30 CFR Part 750 

 Indian land mineral resources, Surface mining, Underground mining, Coal mining Reporting and recordkeeping 

requirements. 

 

30 CFR Part 755 

 Intergovernmental relations reporting and recordkeeping requirements, Indian lands mineral resources. 

 

DRAFTING INFORMATION 

 These regulations were drafted by Beverly M. M. Charles, Office of the Solicitor; Willis Gainer, Western Technical 

Center, Office of Surface Mining, Denver, Colorado; and Murray Newton, Branch of Regulatory Programs, Office of 

Surface Mining. 

 For the reasons stated, 25 CFR Part 216 and 30 CFR Parts 700, 701, 710, 750, and 755 are amended as set out 

herein. 

Dated: August 8, 1984. 

J. Steven Griles, Assistant Secretary, Land and Minerals Management. 

Dated: August 30, 1984. 

Ken Smith, Assistant Secretary, Indian Affairs. 

25 CFR Part 216 -- SURFACE EXPLORATION, MINING, AND RECLAMATION OF LANDS 

 1. The authority for 25 CFR Part 216 reads as follows: 

 Authority: 34 Stat. 539, 35 Stat. 312; 25 U.S.C. 355 NT; 35 Stat 781; 25 U.S.C. 396; Section 1, 49 Stat. 1250; 25 

U.S.C. 473a; 49 Stat. 1967, 25 U.S.C. 501, 502; 52 Stat. 347, 25 U.S.C. 396a-f; 5 U.S.C. 301. 

 2. Section 216.100 is amended by revising paragraph (a) to read as follows: 

SECTION 216.100 - APPLICABILITY. 

(a) The performance standards in this subpart shall apply to each coal mining operation on Indian lands on or after 

December 16, 1977, and shall remain applicable to each operation until OSM issues or denies a permit in accordance 

with 30 CFR Part 750. 

 

* * * * * 
SECTIONS 216.112-216.114 [Removed] 

 3. Sections 216.112, 216.113 and 216.114 are removed. 

PART 700 -- GENERAL 

 4. The authority for 30 CFR Part 700 reads as follows: 

 Authority: Sections 102, 201, 304, 405, 407, 412, 501, 510, 512, 515, 516, 517, 520, 523, 527, 528, 529, 701, 708, 

719 Pub. L. 95-87, 91 Stat. 448, 449, 454, 459, 462, 466, 467, 480, 483, 486, 495, 498, 503, 510, 513, 514, 515, 516, 

521, 526 (30 U.S.C. 1202, 1211, 1224, 1235, 1237, 1242, 1251, 1260, 1262, 1265, 1266, 1267, 1270, 1273, 1277, 

1278, 1279, 1291, 1298, 1309), unless otherwise noted. 

 5. 30 CFR 700.1 is amended by redesignating existing paragraphs (e)-(m) as paragraphs (f)-(n) and adding a new 

paragraph (e) as follows: 

SECTION 700.1 - SCOPE. 

 

* * * * * 

(e) Subchapter E of this chapter contains regulations that apply to surface coal mining and reclamation operations 

conducted on Indian lands. 

 

* * * * * 

SECTION 700.11 [Amended] 

 6. 30 CFR 700.11 is amended by removing paragraph (a)(5) and redesignating paragraph (a)(6) as paragraph (a)(5). 

PART 701 -- PERMANENT REGULATORY PROGRAM 

 7. The authority for 30 CFR Part 701 reads as follows: 

 Authority: Sections 102, 201, 501-529, 701, 702, 705, 708, 711, 713, 714, 715, 716, 717, 719, Pub. L. 95-87, 91 

Stat. 448, 449, 467-515, 516, 519, 520, 521, 523, 524, 525, and 526 (30 U.S.C. 1202, 1211, 1251-1279, 1291, 1292, 

1295, 1298, 1301, 1303, 1304, 1305, 1306, 1307, and 1309), unless otherwise noted. 

 8. Section 701.1 is amended by redesignating paragraphs (b)(3) through (b)(8) as (b)(4) through (b)(9) and by adding 

a new paragraph (b)(3) as follows: 

SECTION 701.1 - SCOPE. 

 

* * * * * 

(b) * * * 

(3) Subchapter E on surface coal mining and reclamation operations on Indian lands. 

 

* * * * * 
 9. 30 CFR 701.3 is revised to read as follows: 

SECTION 701.3 - AUTHORITY. 

 The Secretary is required by section 501(b) of the Act to promulgate regulations which establish the permanent 

regulatory program; by section 523 of the Act to promulgate regulations which establish the Federal lands programs; and 

is authorized by section 710 of the Act to promulgate regulations which establish a Federal program for Indian lands. 

 10. 30 CFR 701.4 is amended by adding paragraph (h) to read as follows: 

SECTION 701.4 - RESPONSIBILITY. 

 

* * * * * 

(h) The Secretary shall have the responsibility for the administration of the Federal program for Indian lands, as provided 

for under Subchapter E of this chapter. The Director and other Federal authorities have the responsibilities under the 

Indian lands program as are provided for under Subchapter E of this chapter. 

 11. 30 CFR 701.11 is amended by redesignating paragraphs (c) through (e) as (d) through (f) and adding a new 

paragraph (c) to read as follows: 

SECTION 701.11 - APPLICABILITY. 

 

* * * * * 

(c) Any person who conducts surface coal mining and reclamation operations on Indian lands on or after eight months 

from the effective date of the Federal program for Indian lands shall have a permit issued pursuant to Part 750 of this 

chapter. However, a person who is authorized to conduct surface coal mining and reclamation operations may continue 

to conduct those operations beyond eight months from the effective date of the Federal program for Indian lands if the 

following conditions are met: 

(1) An application for a permit to conduct those operations has been made to the Director within two months 

after the effective date of the Federal program for Indian lands and the initial administrative decision on that application 

has not been issued; and 

(2) Those operations are conducted in compliance with all terms and conditions of the existing authorization to 

mine, the requirements of the Act, 25 CFR Part 216, and the requirements of all applicable mineral agreements, leases or 

licenses. 

 

* * * * * 

PART 710 -- INITIAL REGULATORY PROGRAM 

 12. The authority for 30 CFR Part 710 reads as follows: 

 Authority: Sections 201, 501, and 502, Pub. L. 95-87, 91 Stat. 445 (30 U.S.C. 1201), unless otherwise noted. 

 13. Section 710.11 is amended by revising paragraph (b) to read as follows: 

SECTION 710.11 - APPLICABILITY. 

 

* * * * * 

(b) Operations on Indian lands. Until OSM makes an initial administrative decision on a permit application under Part 
750 of this chapter, a person conducting coal mining operations on Indian lands shall comply with the performance 

standards of this chapter insofar as they are incorporated in 25 CFR Part 216, Subpart B. 

 

* * * * * 

 14. Subchapter E, consisting of Parts 750 and 755, is added to Title 30 as follows: 

SUBCHAPTER E -- INDIAN LANDS PROGRAM 

PART 750 -- REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS ON 

INDIAN LANDS 

Section 

750.1 Scope. 

750.5 Definitions. 

750.6 Responsibilities. 

750.10 Information collection. 

750.11 Permits. 

750.12 Permit applications. 

750.13 Small operator assistance. 

750.14 Lands designated unsuitable for mining by Act of Congress. 

750.15 Coal exploration. 

750.16 Performance standards. 

750.17 Bonding. 

750.18 Inspection and enforcement. 

750.19 Blaster certification. 

750.20 Adoption of Indian coal lease terms. 

 Authority: 30 U.S.C. 1201-1328; 5 U.S.C. 301. 

SECTION 750.1 - SCOPE. 

 This subchapter provides for the regulation of surface coal mining and reclamation operations on Indian lands and 

constitutes the Federal program for Indian lands. 

SECTION 750.5 - DEFINITIONS. 

 For purposes of regulating surface coal mining operations on Indian lands, the following terms, when used in this 

subchapter or in parts referenced by this subchapter, have the following meanings: 

BIA means the Bureau of Indian Affairs of the U.S. Department of the Interior. 

BLM means the Bureau of Land Management of the U.S. Department of the Interior. 

FEDERAL PROGRAM means the Federal program for Indian lands. 

INDIAN MINERAL OWNER means (1) any individual Indian or Alaska native who owns land or mineral interests in 

land the title to which is held in trust by the United States or is subject to a restriction against alienation imposed by the 

United States, or (2) any Indian tribe, band, native, pueblo, community, rancheria, colony, or other group which owns 

land or mineral interest in land the title to which is held in trust by the United States or is subject to a restriction against 

alienation imposed by the United States. This definition does not include owners of lands patented to a village or regional 

corporation pursuant to the Alaska Native Claims Settlement Act, Pub. L. 92-203. 
LOCAL GOVERNMENT AGENCIES means, in addition to county, city or township governments, Indian tribal 

governments. 

MINERALS AGREEMENT means any joint venture, operating, production sharing, service, managerial, lease or other 

agreements, or any amendment, supplement to or modification of such agreement, providing for the exploration for, or 

extraction, processing, or the development of coal, or providing for the sale or other disposition of the production or 

products of such coal resources. 

MMS means the Minerals Management Service of the U.S. Department of the Interior. 

REGULATORY AUTHORITY means the Office of Surface Mining. 

SECTION 750.6 - RESPONSIBILITIES. 

(a) OSM shall: 

(1) Be the regulatory authority on Indian lands; 

(2) After consultation with the Bureau of Indian Affairs and, as applicable, with the Bureau of Land 

Management, conditionally approve, approve, or disapprove applications for permits, permit renewals, or permit 

revisions for surface coal mining operations on Indian lands, and applications for the transfer, sale or assignment of such 

permit rights on Indian lands; 

(3) Conduct inspection and enforcement activities with respect to surface coal mining and reclamation 

operations on Indian lands; 

(4) Consult with the BIA and the affected tribe with respect to special requirements relating to the protection of 

non-coal resources of the area affected by surface coal mining and reclamation operations, and assure operator 

compliance with such special requirements; 

(5) Consult with the Bureau of Land Management concerning requirements relating to the development, 

production and recovery of mineral resources on Indian lands; 

(6) Approve environmental protection performance bonds and liability insurance required for surface coal 

mining and reclamation operations on Indian lands but not the production royalty bond; and 

(7) Ensure compliance with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321

et seq., with respect to permitting actions for surface coal mining and reclamation operations on Indian lands. 

(b) The Bureau of Land Management is responsible for: 

(1) Receiving, reviewing, and conditionally approving, approving or disapproving coal exploration plans and 

mining plans, as provided in 25 CFR Chapter I or in specific Indian mineral agreements; 

(2) Administering, and conducting inspection and enforcement for, coal exploration operations on Indian lands; 

(3) Administering mining contract, lease or mineral agreement terms and conditions, as provided for in 25 CFR 

Chapter I or in specific Indian mineral agreements; and 

(4) Administering and conducting inspections and enforcement of terms and conditions of contracts, leases or 

mineral agreements for coal mining operations, including production verification and inspection of operations for that 

purpose. 

(c) The Minerals Management Service is responsible for collecting and accounting for royalties and other income from 

Indian mineral agreements except for annual rentals. 

(d) The Bureau of Indian Affairs is responsible for: 

(1) Consulting directly with and providing representation for Indian mineral owners and other Indian land 

owners in matters relating to surface coal mining and reclamation operations on Indian lands; 

(2) After consultation with the affected tribe, reviewing and making recommendations to OSM concerning 

permit applications, renewals, revisions or transfers of permits, permit rights or performance bonds; and 

(3) After consultation with the affected tribe, reviewing mining plans and making recommendations to the 

Bureau of Land Management pursuant to 25 CFR 216.7. 
SECTION 750.10 - INFORMATION COLLECTION. 

 The information collection requirements of this part do not require approval from the Office of Management and 

Budget under 44 U.S.C. 3507 because there are expected to be less than 10 respondents annually. 

SECTION 750.11 - PERMITS. 

(a) No person shall conduct surface coal mining and reclamation operations on Indian lands after eight months following 

the effective date of this subchapter unless that person has first obtained a permit pursuant to this part. 

(b) Any person conducting surface coal mining and reclamation operations on lands subject to this part shall comply with 

the terms and conditions of the permit, the requirements of this subchapter, and the Act. 

(c) Surface coal mining and reclamation operations authorized prior to the effective date of this subchapter may be 

conducted beyond the eight-month period specified in paragraph (a) of this section if the following conditions are 

present: 

(1) An application for a permit to conduct those operations under this part has been made within two months of 

the implementation of the Federal program for Indian lands; 

(2) OSM has not yet rendered an initial administrative decision approving or disapproving the permit 

application; and 

(3) Those operations are conducted in compliance with all terms and conditions of the lease or minerals 

agreement, the existing authorization to mine, the requirements of the Act, and the requirements of 25 CFR Chapter I. 

(d) Whenever surface coal mining and reclamation operations are proposed to include both Indian lands and non-Indian 

lands, OSM will use reasonable efforts to ensure that reviews of the permit applications will be conducted cooperatively 

and concurrently by OSM and the regulatory authority responsible for the non-Indian lands. 

SECTION 750.12 - PERMIT APPLICATIONS. 

(a) Each application for a permit, permit revision, or permit renewal to conduct surface coal mining and reclamation 

operations on land subject to this part shall be accompanied by a fee made payable to the United States. The amount or 

method of calculation of the fees shall be determined by the Director. 

(b) Unless specified otherwise by the regulatory authority, each person submitting a permit application shall file no less 

than seven copies of the complete permit application package with OSM. OSM will ensure that the affected tribes, the 

Bureau of Indian Affairs, and when applicable, the Bureau of Land Management receive copies of the application. 

(c)(1) The following requirements of Subchapter G of this chapter shall govern the processing of permit applications on 

Indian lands except as specified in paragraph (c)(2) or (c)(3) of this section. 

(i) Part 773; 

(ii) Part 774; 

(iii) Part 775; 

(iv) Part 777; 

(v) Part 778; 

(vi) Part 779; 

(vii) Part 780; 

(viii) Part 783; 

(ix) Part 784; and 

(x) Part 785; 

(2) The following provisions of Subchapter G are not applicable to permitting on Indian lands: 

(i) Part 772; 

(ii) Sections 773.11, 773.15(c)(3), 777.17; 

(iii) Section 778.16 (a) and (b); and 

(iv) Sections 785.11, 785.12; 
(3) Special requirements. 

(i) Approval of a transfer, assignment, or sale of rights granted under a permit shall not be construed as 

approval of a transfer or assignment of a leasehold interest. Leasehold interests may be transferred or assigned only in 

accordance with 25 CFR Parts 211 and 212. 

(ii) The following additional requirements are applicable to permit revisions: 

(A) Applications for revisions pursuant to Section 774.13(b) of this chapter shall contain the 

same information on the proposed revised operation as if the revised operation had been proposed as part of the initial 

operation permitted under this part. 

(B) OSM shall determine if the application for revision is complete and if the proposed 

revision is significant. OSM shall consider the following factors as well as other relevant factors in determining the 

significance of a proposed revision: (1) Changes in production or recoverability of the coal resource; (2) the 

environmental effects; (3) the public interest in the operation, or likely interest in the proposed revision; and (4) possible 

adverse impacts from the proposed revision on fish or wildlife, endangered species, bald or golden eagles or cultural 

resources. 

(C) Significant revisions shall be processed as if they are new applications in accordance with 

Parts 773 and 775 of this chapter. Other revisions shall be reviewed to determine if the findings which were made in 

issuing the original permit are still valid. 

(iii) Any section in this chapter which provides for consultation with, or notification to, State and local 

governments shall be interpreted as requiring in like manner consultation with, or notification to, tribal governments. 

(d) The permit application package shall also contain: 

(1) The mining plan required to be submitted by 25 CFR 216.7 or 43 CFR Part 3480, as applicable. 

(2) The following information to assure compliance with Federal laws other than the Act: 

(i) The description of the proposed surface coal mining and reclamation operation with respect to: (A) 

Increases in employment, population, and revenues to public and private entities; and (B) the ability of public and private 

entities to provide goods and services necessary to support surface coal mining and reclamation operations. 

(ii) An evaluation of impacts to the scenic and aesthetic resources, including noise on the surrounding 

area, due to the proposed surface coal mining and reclamation operation. 

(iii) A statement, including maps and ownership data as appropriate, of any cultural or historical site 

listed on the National Register of Historic Places within the permit and adjacent areas of the proposed surface coal 

mining and reclamation operation. 

(iv) A statement of the classes of properties of potential significance within the disturbed area, and a 

plan for the identification and treatment, in accordance with 36 CFR Part 800, of properties significant and listed, or 

eligible for listing, on the National Register of Historic Places within the permit area of the proposed surface coal mining 

and reclamation operation. 

(v) A description of compliance with the American Indian Religious Freedom Act, and other Federal 

laws aimed at protecting cultural resources on Indian lands. 

(vi) A description of the probable changes in air quality resulting from the surface coal mining 

operation and any necessary measures to comply with prevention of significant deterioration limitations, or other Federal 

laws for air quality protection. 

(vii) A description of the location, acreage and condition of important habitats of selected indicator 

species located within the permit and adjacent areas of the proposed surface coal mining and reclamation operation. 

(viii) A description of active and inactive nests and prey areas of any bald or golden eagles located 

within the permit and adjacent areas of the proposed surface coal mining and reclamation operations. 

(ix) A description and special studies, if required, of all threatened and endangered species and their 

critical habitats located within the permit and adjacent areas of the proposed surface coal mining and reclamation 

operations. 

SECTION 750.13 - SMALL OPERATOR ASSISTANCE. 

 Part 795 of this chapter is applicable on Indian lands. 
SECTION 750.14 - LANDS DESIGNATED UNSUITABLE FOR MINING BY ACT OF CONGRESS. 

 Part 761 of this chapter is applicable on Indian lands. 

SECTION 750.15 - COAL EXPLORATION. 

 Coal exploration operations on Indian lands shall be conducted in accordance with 25 CFR Part 216 and 43 CFR Part 

3480, whichever is applicable. 

SECTION 750.16 - PERFORMANCE STANDARDS. 

 After OSM issues a permit under this part, a person conducting surface coal mining operations on Indian lands shall 

do so in accordance with Parts 816, 817, 819, 822, 823, 824, 827, and 828 of this chapter. Prior to that time, the person 

conducting surface coal mining operations shall adhere to the performance standards of 25 CFR Part 216, Subpart B. 

SECTION 750.17 - BONDING. 

 Subchapter J of this title is applicable on Indian lands. 

SECTION 750.18 - INSPECTION AND ENFORCEMENT. 

(a) Parts 842, 843 and 845 of this chapter and the hearings and appeals procedures of 43 CFR Part 4 are applicable on 

Indian lands. 

(b) OSM shall furnish copies of notices and orders to mineral owners or surface owners on whose land the surface coal 

mining operation takes place. OSM may furnish copies of notices and orders to any other person having an interest in the 

surface coal mining and reclamation operation or the permit area. 

(c) BLM shall furnish copies of notices and orders to mineral owners or surface owners on whose land coal exploration 

operations take place and pursuant to 25 CFR 216.7 and 43 CFR Part 3480, where applicable, to any mineral owner or 

surface owner, or to any person having an interest in the coal mining operation. 

(d) Whenever an authorized representative of the Secretary decides to conduct an inspection of any coal mining 

operations or any premises in which any records to be maintained are located, the appropriate representative of the local 

governing Indian tribe shall be notified and be invited to accompany the Secretary's representative on such an inspection. 

(e) No provision in this chapter shall be interpreted as replacing or superseding any other remedies of the Indian mineral 

owners, as set forth in a contract or otherwise available at law. 

(f) Appropriate officials of the local governing Indian tribe shall be notified of any hearings or conferences conducted 

regarding civil penalties and shall be invited to attend. 

SECTION 750.19 - BLASTER CERTIFICATION 

 A person seeking to conduct blasting operations on Indian lands shall comply with the requirements of 30 CFR 

816.61(c) and 817.61(c) and, upon promulgation of a Federally-administered blaster certification programs shall comply 

with the requirements contained therein. 
SECTION 750.20 - ADOPTION OF INDIAN COAL LEASE TERMS. 

(a) All leases of coal on Indian lands are amended to include the following: 

 The Lessee shall comply with all applicable requirements of the Surface Mining Control and Reclamation Act of 1977, 

and all regulations promulgated thereunder, including those codified at 30 CFR Part 750. 

(b) With respect to leases issued after August 3, 1977, the Secretary shall also include and enforce in such leases terms 

and conditions which are requested in writing by the Indian tribe whose interest is affected by such leases. 

PART 755 -- TRIBAL-FEDERAL INTERGOVERNMENTAL AGREEMENTS 

Section 

755.1 Scope. 

755.10 Information collection. 

755.11 Application and agreement. 

755.12 Terms. 

755.13 Authority reserved by the Secretary. 

755.14 Amendments. 

755.15 Termination. 

 Authority: Pub. L. 95-87 30 U.S.C. 1201-1328. 

SECTION 755.1 - SCOPE. 

 This part sets forth requirements for the development, approval and administration of Tribal-Federal 

Intergovernmental Agreements. 

SECTION 755.10 - INFORMATION COLLECTION. 

 The information collection requirements contained in this part do not require approval from the Office of Management 

and Budget under 44 U.S.C. 3507 because there are expected to be less than 10 respondents annually. 

SECTION 755.11 - APPLICATION AND AGREEMENT. 

(a) An Indian tribe may request that the Secretary enter into a Tribal-Federal intergovernmental agreement with the tribe. 

(b) A request for a Tribal-Federal intergovernmental agreement shall be submitted in writing and shall include proposed 

terms of the agreement consistent with the requirements of this part. 

SECTION 755.12 - TERMS. 

 The terms in each Tribal-Federal intergovernmental agreement may include: 

(a) Provisions to allow the tribe to work with and assist OSM in the review of permit applications, and to recommend 

appropriate action on permits, permit applications, inspection and enforcement, and bond release or forfeiture; and 

(b) Provisions to provide funding for tribal employees to attend and testify at hearings and to perform other functions 

under the agreement. 
SECTION 755.13 - AUTHORITY RESERVED BY THE SECRETARY. 

 The Secretary shall not delegate to any Indian tribe, nor shall any Tribal-Federal Intergovernmental Agreement be 

construed to delegate to any tribe, the nondelegable authority exercised by or reserved to the Secretary on Indian lands. 

SECTION 755.14 - AMENDMENTS. 

 An agreement that has been approved pursuant to this part may be amended by mutual agreement of the Secretary and 

the officers of the tribe. 

SECTION 755.15 - TERMINATION. 

 An agreement may be terminated by either party upon written notice to the other specifying the date upon which the 

agreement will be terminated. The date of termination shall be no less than 30 days from the date of the notice. 

[FR Doc. 84-25637 Filed 9-27-84; 8:45 am] 

BILLING CODE 4310-05-M