FEDERAL REGISTER: 53 FR 11606 (APRIL 7, 198 8)

DEPARTMENT OF THE INTERIOR

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

30 CFR Part 773

Surface Coal Mining and Reclamation Operations; Requirements for Permits and Permit Processing

ACTION: Final rule. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSMRE) of the Department of the Interior 

(DOI) is adopting a final rule revising the regulatory prohibition on mining without a permit more than eight months after 

approval of the State or Federal regulatory program. The grace period will be available only to persons conducting 

surface coal mining operations under a permit from the State regulatory authority, issued in accordance with the initial 

regulatory program. This change responds to a decision rendered in Federal district court. The effect of this change is 

that any existing mining operation that has no permanent program permit and does not qualify for the exception will have 

to cease operations and remain shut down until a permanent program permit is issued. This change is not intended to 

affect coal preparation plants separately authorized to operate under 30 CFR 785.21(e). 

EFFECTIVE DATE: May 9, 1988. 

FOR FURTHER INFORMATION CONTACT: Patrick W. Boyd, Branch of Federal and Indian Programs, OSMRE, 

1951 Constitution Avenue NW., Washington, DC 20240; Telephone (202) 343-1864 (FTS or commercial). 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of Rule Adopted and Response to Comments 

III. Procedural Matters 

 

I. BACKGROUND 

 Section 502(d) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., 

prohibits the conduct of surface coal mining operations without a permanent program permit for more than eight months 

after approval of the State or Federal regulatory program. All operators who expect to continue to operate eight months 

after the Secretary of the Interior approves a State regulatory program (primacy) or implements a Federal program must 

submit a permit application to the regulatory authority within two months following primacy or the implementation of a 

Federal program. In addition, the regulatory authority must process, and grant or deny, permanent program permits 

within the eight-month period after primacy or the implementation of a Federal program for the operators who wish to 

continue to operate beyond that period. 

 However, section 506(a) of SMCRA recognizes the possibility that this task may be unachievable in some States due 

to workforce limitations and potential administrative delay in permit processing. As a result, that section provides that 

certain operators may continue to operate after the eight-month period elapses under their existing permits from the State 

regulatory authority issued in accordance with the initial regulatory program. Operators holding such permits may 

continue to operate beyond the eight-month period if they have filed applications, within the two-month deadline, for 

permanent program permits and no initial administrative decision has been rendered. 

 On September 18, 1978, OSMRE proposed a rule to implement the section 506(a) exception. See the discussion at 43 

FR 41687. The final rule was published on March 13, 1979 as 30 CFR 771.13(b). See 44 FR 15014 for the discussion 

and 44 FR 15350 for the rule. The final rule provided that an operator holding a permit issued or amended by the 

regulatory authority in accordance with the requirements of section 502 of SMCRA could continue operating after the 

eight-month period if a timely and complete permanent program permit application had been filed, no initial 

administrative decision had been rendered, and the operation was conducted in compliance with 30 CFR Chapter VII, 

Subchapter B; SMCRA; and applicable State statutes and rules. 
 On June 25, 1982, OSMRE proposed to revise this rule by providing a second exception to the prohibition on mining 

without a permit eight months after primacy or the implementation of a Federal program. Under the proposal, in addition 

to those holding a permit, any person authorized under the initial regulatory program to conduct surface coal mining 

operations could also continue operations beyond the eight-month period provided certain conditions were met. The 

purpose of the proposed change was to recognize that some existing operations required to have permits under the 

permanent regulatory program might not have been required to have permits under the initial regulatory program (47 FR 

27694). The final rule, unchanged from the proposed rule, was published on September 28, 1983. Although the rule was 

adopted unchanged, one commenter did suggest that allowing continued operation of "unpermitted but authorized" 

mining operations exceeds the requirements of SMCRA. In disagreeing with the commenter, OSMRE stated that it 

would be "inequitable and contrary to [the intent of SMCRA] to deny some operators the privilege on continuing 

operations solely because they were not required to have a permit during the initial program." 48 FR 44354. 

 Subsequently, the regulation was challenged in the U.S. District Court for the District of Columbia. The court 

concluded that the rule "does not address the plain language of section 506(a) and Congress' express requirement that 

only permit holders be extended the grace period." It remanded the rule to the Secretary of the Interior. In Re: Permanent 

Surface Mining Regulation Litigation (II), No. 79-1144, (D.D.C.) July 15, 1985, Slip Op. at 133. 

 Thus, on November 9, 1987, OSMRE proposed to return to the language of the 1979 regulation, deleting the 

remanded exception for those who were authorized to conduct surface coal mining operations but who did not have an 

initial program permit. This action would bring the rule into conformance with the court order. 

 

II. DISCUSSION OF RULE ADOPTED AND RESPONSE TO COMMENTS 

 Section 506(a) of SMCRA prohibits mining without a permit eight months after the permanent regulatory program 

has been approved, unless an operator holding a permit from the regulatory authority issued in accordance with section 

502 of SMCRA has applied for a permanent program permit but an initial administrative decision has not been rendered 

before the eight-month period expires. The rule language adopted today is unchanged from the proposal and closely 

conforms to the statutory language. The remanded exception for those who were authorized to conduct surface coal 

mining operations but who did not have an initial program permit has been deleted. 

 The rule is not intended to limit the responsibility of operators for the reclamation of surface coal mining operations. 

Operators must reclaim all operations that were not required to obtain permits under the initial program and that have 

ceased or will cease operation rather than obtain a permanent program permit. This rule is not intended to affect coal 

preparation plants for which a separate interim authorization to operate is found in 30 CFR 785.21(e). To avoid 

confusion, specific reference is made to the coal preparation plant regulations in the final rule. 

 Subparagraphs (i), (ii) and (iii) under 30 CFR 773.11(b)(2) remain unchanged. These paragraphs qualify the exception 

by establishing three requisite conditions. Under the first, the operator must file the permanent program permit 

application within two months following the effective date of the program. In addition, the regulatory authority must 

have not yet rendered an initial administrative decision on the application. Also, the surface coal mining operation must 

be in compliance with all applicable laws, rules and permit terms and conditions. 

 One commenter indicated that the proposal "appears to bring the OSMRE regulations into compliance with the 

decision of [the Federal district court]" and noted "the acknowledgment by OSMRE that those operations which were 

not required to obtain permits under the initial program and which ceased operation rather than obtain a permanent 

program permit are nevertheless subject to regulation under SMCRA and are required to reclaim all operations pursuant 

to the initial program procedures." 

 The commenter also noted that, "By extension, [SMCRA] jurisdiction covers coal preparation plants which operated 

after the effective date of [SMCRA] and which terminated operations rather than apply for a permanent program permit 

under 30 CFR 785.12(e)." As stated above in the discussion of the rule adopted, this rule is not intended to affect coal 

preparation plants that are covered by 30 CFR 785.21(e). The rules governing such coal preparation plants are found in 

30 CFR Parts 700, 701, 785, and 827. The commenter will find a thorough discussion of the subject in the May 11, 1987, 

Federal Register (52 FR 17724).
 Two commenters pointed out that the proposal erroneously indicated that it would apply to Indian lands. The Indian 

lands rules specify that 30 CFR 773.11 is not applicable to permitting on Indian lands. See 30 CFR 750.12(c)(2)(ii). The 

preamble to the final rule has been modified to correct the misstatement. 

 

III. PROCEDURAL MATTERS 

 

Effect in Federal Program States and on Indian Lands 

 This rule applies through cross-referencing in those States with Federal programs. They are Georgia, Idaho, 

Massachusetts, Michigan, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee and Washington. The 

Federal programs for these States appear at 30 CFR Parts 910, 912, 921, 922, 933, 937, 939, 941, 942, and 947 

respectively. The rule does not apply to Indian lands pursuant to 30 CFR 750.12(c)(2)(ii). No comments were received 

concerning unique conditions that exist in any of these States or on Indian lands that would have required changes to the 

national rule. 

 

Effect on State Programs 

 Following promulgation of the final rule, OSMRE will evaluate permanent State regulatory programs approved under 

section 503 of SMCRA to determine whether any changes in these programs will be necessary. If the Director determines 

that certain State program provisions should be amended in order to be made no less effective than the revised Federal 

rules, the individual States will be notified in accordance with the provisions of 30 CFR 732.17. 

 

Federal Paperwork Reduction Act 

 This rule does not contain information collection requirements that require approval by the Office of Management and 

Budget under 44 U.S.C. 3507. 

 

Executive Order 12291 and Regulatory Flexibility Act 

 The DOI has determined that this document is not a major rule under the criteria of Executive Order 12291 (February 

17, 1981) and certifies that it will not have significant economic effect on a substantial number of small entities under the

Regulatory Flexibility Act, 5 U.S.C. 601 et seq. This rule affects a relatively small number of surface coal mining 

operations. The rule does not distinguish between small and large entities. The economic effects of the proposed rules are 

estimated to be minor and no incremental economic effects are anticipated as a result of the rule. 

 

National Environmental Policy Act 

 OSMRE has prepared an environmental assessment (EA) and has made a finding that the final rule will not 

significantly affect the quality of the human environment under section 102(2)(C) of the National Environmental Policy 

Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). The EA is on file in the OSMRE Administrative Record, Room 5131, 1100 

L Street NW., Washington, DC. 

 

Author 

 The principal author of this rule is Patrick W. Boyd, Branch of Federal and Indian Programs, OSMRE, 1951 

Constitution Avenue NW., Washington, DC 20240; Telephone: (202) 343-1864. 

 

LIST OF SUBJECTS IN 30 CFR PART 773 

 Reporting and recordkeeping requirements, Surface mining, Underground mining. 

 Accordingly, 30 CFR Part 773 is amended as set forth herein. 

Dated: March 4, 1988. 

J. Steven Griles, Assistant Secretary -- Land and Minerals Management. 
PART 773 -- REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING 

 1. The authority citation for Part 773 is revised to read as follows: 

 Authority: 30 U.S.C. 1201 et seq., 16 U.S.C. 470 et seq. , 16 U.S.C. 1531 et seq. , 16 U.S.C. 661 et seq. , 16 U.S.C. 

703 et seq. , 16 U.S.C. 668a, 16 U.S.C. 469 et seq. , 16 U.S.C. 470aa et seq. , and Pub. L. 100-34. 

 2. The introductory language to paragraph (b)(2) of Section 773.11 is revised to read as follows: 

SECTION 773.11 - REQUIREMENTS TO OBTAIN PERMITS. 

 

* * * * * 

(b) * * * 

(2) Except for coal preparation plants separately authorized to operate under 30 CFR 785.21(e), a person 

conducting surface coal mining operations, under a permit issued or amended by the regulatory authority in accordance 

with the requirements of section 502 of the Act, may conduct such operations beyond the period prescribed in paragraph 

(a) of this section if -- 

 

* * * * * 

[FR Doc. 88-7642 Filed 4-6-88; 8:45 am] 

BILLING CODE 4310-05-M