FEDERAL REGISTER: 54 FR 8982 (March 2, 1989)

DEPARTMENT OF THE INTERIOR

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

30 CFR Parts 773, 778, and 843

Requirements for Surface Coal Mining and Reclamation Permit Approval; 

Ownership and Control Information; Reporting of Violations

ACTION: Final rule. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSMRE) of the U.S. Department of the 

Interior (DOI) is revising its regulations governing the requirements for an application for a permit to conduct surface 

coal mining operations. This rule will require a permit applicant to submit more detailed information on persons who own 

or control it, and will revise the requirements for reporting violations. The rule also will require a regulatory authority to 

make its decision to approve or disapprove a permit application on the basis of up-to-date information concerning the 

compliance record of the applicant and related persons. The revisions are needed to conform the permit application 

requirements with changes in the permitting process and to insure that permits are issued based on current compliance 

review information. 

EFFECTIVE DATE: April 3, 1989. 

FOR FURTHER INFORMATION CONTACT: Andrew F. DeVito, Office of Surface Mining Reclamation and 

Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240; telephone (202) 

343-5241 (Commercial or FTS). 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of the Rule 

III. Discussion of Public Comments 

IV. Procedural Matters 

 

I. BACKGROUND 

 This rule conforms the requirements for an application for a permit to conduct surface coal mining operations with 

related changes in the permit review process. On October 3, 1988 (53 FR 38868) OSMRE published a final rule which 

amended its regulations dealing with the review and approval of permit applications. That rule added a definition of the 

terms "owned or controlled" and "owns or controls" as these concepts are used in section 510(c) of the Surface Mining 

Control and Reclamation Act of 1977 (the Act or SMCRA), 30 U.S.C. 1201 et seq., and expanded the scope of the 

compliance review which a regulatory authority is required to make prior to the approval of a permit application. 

 This rule will require a permit applicant to include in his or her application detailed information on the owners and 

controllers of related operations, and to update that information immediately prior to the issuance of a permit. The rule 

also will require a regulatory authority to use the updated information in making a final decision to approve or disapprove 

the application. 

 The information reported under this rule will provide an essential part of the data contained in OSMRE's 

computer-based Applicant/Violator System, which processes multiple sources of applicant and violation information to 

match applicants and their owners and controllers to violators of the Act and its implementing regulatory programs. It is 

important that the information submitted pursuant to this rule be as complete and up-to-date as is reasonably possible to 

insure a thorough and accurate review of the compliance record of the permit applicant and related persons prior to 

making a decision on whether to issue a permit. 

 The proposed rule to amend 30 CFR 773.15(e) was published on July 16, 1986 (51 FR 25822). The proposed rule to 

amend 30 CFR 773.17, 778.13 and 778.14 was published on May 28, 1987 (52 FR 20032). No request was received for 
a public hearing and none was held. The two proposals are being adopted together because their information reporting 

requirements are interrelated. 

 

II. DISCUSSION OF THE RULE 

 The rule language in the proposed rule published on May 28, 1987 has been modified to clarify the reporting 

requirements in response to comments and to break them into logical components. Any substantive changes from the 

proposed rule are noted in the preamble discussions of the various sections. 

 

SECTION 773.15(e) -- FINAL COMPLIANCE REVIEW 

 Under 30 CFR 773.15(b)(1), a regulatory authority may not issue a permit to an applicant if any surface coal mining 

and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the 

applicant is currently in violation of the Act or certain other environmental laws and regulations. Experience has shown 

that the time that elapses between the submission of an application and the issuance of the permit typically is several 

months at a minimum. Information submitted with the application may become dated by the time of permit issuance, thus 

making it impossible for the regulatory authority to make an accurate compliance review under Section 773.15(b)(1). 

 This rule adds to Section 773.15 a new paragraph (e) to require that before a permit is issued the regulatory authority 

reconsider its initial Section 773.15(b)(1) compliance review in light of any new information submitted pursuant to 

Sections 778.13(i) and 778.14(d) of this rule, which are discussed subsequently. If the applicant fails or refuses to 

respond as required, the regulatory authority will be unable to make the final compliance review required by Section

773.15(e) and a permit will not be issued. The final compliance review based on this updated information will insure that 

the regulatory authority makes an accurate permitting decision under Section 773.15(b)(1). Authority for this section is 

contained in sections 101, 102, 201(c)(1), 201(c)(2), 412(a), 501(b), 504, 505, 507(b)(4), 510 (a), (b) and (c), 511, 518, 

701(16) and 701(19) of the Act. 

 The proposed rule, published on July 16, 1986, would have added paragraphs (e)(1)(i), (e)(1)(ii) and (e)(2) to Section

773.15. Proposed paragraphs (e)(1)(i) and (e)(1)(ii) have been adopted in this rule as Sections 778.13(i) and 778.14(d), 

respectively, and are discussed later in this preamble. Proposed Section 773.15(e)(2) has been adopted in this rule as 

Section 773.15(e). 

 

SECTION 773.17(i) – PERMIT CONDITION 

 Section 773.17(i) is a new permit condition requiring the submission, correction or update of certain information after 

the issuance of a cessation order. It applies to all permits to conduct surface coal mining operations, including those 

issued prior to the adoption of this rule. 

 Section 773.17(i) will require that within thirty days of the issuance of a cessation order under 30 CFR 843.11, or the 

State program equivalent, the permittee of the surface coal mining and reclamation operation for which the cessation 

order was issued shall either submit, correct or update and furnish to the regulatory authority that issued the permit, the 

information required by Section 778.13(c) of this rule concerning the identity of persons who own or control the 

permittee. The information must be current to the date the cessation order was issued. If there has been no change in the 

information previously submitted, the permittee must notify the regulatory authority of that fact in writing. The 

regulatory authority will enter any new information into the Applicant/Violator System, which will insure that the data in 

the System is current. 

 A permittee's failure to comply with this permit condition will result in appropriate enforcement action by the 

regulatory authority. The obligation to furnish the updated information applies even if the cessation order is under appeal. 

This obligation is consistent with 43 CFR 4.1116, which states that except where temporary relief is granted pursuant to 

section 525(c) or 526(c) of the Act, cessation orders issued under the Act shall remain in effect during the pendency of 

review before an administrative law judge or the Interior Board of Land Appeals. If temporary relief from a cessation 

order is granted, the permittee need not comply with the permit condition as long as the temporary relief is in effect. 

 The proposed rule would have required that this information be updated and furnished to the regulatory authority on 

an annual basis. However, once a permit is issued the updated information is needed only if a violation which would 
require that a new permit be denied occurs and remains uncorrected. In response to comments objecting to the burden of 

information submittal, OSMRE has decided to require the information update at the issuance of a cessation order, which 

is such a violation. This will eliminate a superfluous reporting obligation for the majority of permittees who operate in 

accordance with their permits. If a notice of violation is issued, timely abatement of the violation will avoid not only the 

issuance of a failure-to-abate cessation order, but also the obligation to submit updated information on owners and 

controllers. In this manner, the commenters' concern over the amount of information that must be submitted is partially 

alleviated. The rule will insure that the regulatory authority obtains the names of the owners and controllers of the 

permittee at the time a cessation order is issued in order to withhold the issuance of new permits to such persons if the 

underlying violation remains unabated. 

 

SECTION 778.10 -- INFORMATION COLLECTION 

 Section 778.10 of the rule concerns the information collection requirements in 30 CFR Part 778 including approval by 

the Office of Management and Budget (OMB) to collect the information and the clearance number assigned by OMB. 

This rule revises Section 778.10 by deleting the reference to clearance number 1029-0037. As stated in Section 778.10, 

the clearance number assigned by OMB to the information collection requirements in Part 778 is 1029-0034. 

 

SECTION 778.13 -- IDENTIFICATION OF INTERESTS 

 As stated in the May 28, 1987 proposed rule, the information reporting requirements in this final rule have been 

conformed as necessary to the recently promulgated final definition of "owned or controlled" and "owns or controls" at 

30 CFR 773.5. 

 Section 778.13(b) of the rule will require each applicant for a permit to conduct surface coal mining operations to 

include in his or her application the name, address, telephone number, and, as applicable, the employer identification 

number of the applicant, the applicant's resident agent who will accept service of process and the person who will pay the 

abandoned mine land reclamation fee. Section 778.13(b) also requests the social security numbers of the above persons, 

but indicates that the disclosure of any social security number is voluntary. 

 Section 7(a) of the Privacy Act of 1974, 88 Stat. 1896, specifies that it shall be unlawful for any Federal, State or local 

government agency to deny to any individual any right, benefit or privilege provided by law because of such individual's 

refusal to disclose his or her social security number unless the disclosure is required by Federal law or was required under 

statute or regulation prior to January 1, 1975. Since SMCRA does not specifically require the disclosure of an 

individual's social security number, and since the information was not required prior to January 1, 1975, no benefit, right 

or privilege, including a permit to conduct a surface coal mining operation, may be denied for failure to disclose a social 

security number under this rule. 

 Section 7(b) specifies that when an individual is asked to disclose his or her social security number, the individual shall 

be told whether the requirement is mandatory or voluntary. OSMRE is requesting the voluntary disclosure of an 

individual's social security number pursuant to the authority granted under sections 201 (c)(1) and (c)(2) of the Act. The 

information will be used to process permit applications and to perform the compliance review required by section 510(c) 

of the Act and 30 CFR 773.15(b)(1). This exemption from mandatory disclosure applies only to a social security number 

and not to an employer identification number, which is the taxpayer identification number for business entities such as 

corporations and partnerships, and for sole proprietors if they pay wages to one or more employees. The submission of 

the employer identification number is mandatory under this rule. 

 The requirement in Section 778.13(b) of this rule to supply the name of the person who will pay the abandoned mine 

land reclamation fee is in addition to the requirement in Section 778.13(c) to list the operator. Section 402(a) of the Act 

requires that an operator of a surface coal mining and reclamation operation pay the reclamation fee required by the Act. 

Experience has shown that often the reclamation fee is paid for the operator by agents such as attorneys, trustees, 

accounting firms, banks or other companies, or by the permittee if different from the operator. Furnishing the name of the 

person paying the reclamation fee will assist OSMRE in collecting the money and arranging for audits when necessary. 

Supplying the name of the person who will actually pay the reclamation fee does not in any way alter the legal obligation 

of other persons responsible for its payment. 
 As originally proposed, paragraph (b) requested the social security number or taxpayer identification number of the 

applicant, the operator, the applicant's resident agent, the person who will pay the abandoned mine land reclamation fee, 

and any contractor who will conduct the surface coal mining and reclamation operation. Since a taxpayer identification 

number can be either a social security number or an employer identification number, OSMRE has substituted the term 

"employer identification number" for the term "taxpayer identification number" in order to eliminate any confusion. 

 The final rule requests the disclosure of both a social security number and an employer identification number. OSMRE 

is requesting both numbers because of the possibility that a person may have used a social security number on some 

occasions and an employer identification number on others. Requesting both numbers will help to insure that the data in 

the Applicant/Violator System is complete. A similar change has been made in paragraph (c). 

 The reference in proposed Section 778.13(b) to the operator, and the requirement to furnish information concerning 

the operator, have been transferred to paragraph (c) of the final rule. 

 Proposed Section 778.13(b) also requested the name of any contractor who will conduct the surface coal mining and 

reclamation operation. In the final rule, the requirement to furnish information concerning contract mining operations has 

been transferred to paragraph (c). 

 Final Section 778.13(c) will require the applicant to submit the following information, as applicable, for any person 

who owns or controls the applicant under the definition of "owned or controlled" and "owns or controls" in 30 CFR 

773.5: 

(1) The person's name, address, social security number, and employer identification number; 

(2) The person's ownership or control relationship to the applicant, including the percentage of ownership and 

location in the organizational structure; 

(3) The title of the person's position, date position was assumed, and when submitted under Section 773.17(i) of 

this rule, the date of departure from the position; 

(4) Each additional name and identifying number, including, employer identification number, Federal or State 

permit number and MSHA number with date of issuance, under which the person owns or controls, or previously owned 

or controlled, a surface coal mining and reclamation operation in the United States within the five years preceding the 

date of the application; and 

(5) The application number or other identifier of, and the regulatory authority for, any other pending surface 

coal mining operation permit application filed by the person in any State in the United States. 

 Under the referenced definition in 30 CFR 773.5 the permit applicant must furnish the above information for all: (1) 

Operators; (2) officers, directors, and any other persons who perform a function similar to an officer or director; (3) 

persons having the ability to commit the financial or real property assets or working resources of an entity; (4) general 

partners; (5) shareholders owning of record a ten percent or greater interest; (6) persons owning or controlling the coal 

to be mined under the proposed permit under a lease, sublease or other contract, and having the right to receive such coal 

after mining or having authority to determine the manner in which the proposed surface coal mining and reclamation 

operation is to be conducted; (7) persons who have any other relationship with the permit applicant which gives them 

authority directly or indirectly to determine the manner in which the proposed surface coal mining operation is to be 

conducted; and (8) persons who own or control the persons specified in paragraphs (1) through (7), either directly or 

indirectly through intermediary entities. 

 The requirements to list "persons having the ability to commit the financial or real property assets or working 

resources of an entity," and "persons owning or controlling the coal to be mined * * *" have been added to the final rule 

because under the definition of "owned or controlled" and "owns or controls" at 30 CFR 773.5 those persons are 

presumed to own or control the permit applicant. The addition was necessary in order to conform these information 

reporting requirements with the definition. 

 Like the proposed rule, the final rule requires a permit applicant to report both direct and indirect ownership and 

control relationships. As explained in the October 3, 1988 final rule (53 FR 38868) defining "owned or controlled" and 
"owns or controls," the ten percent ownership presumption applies at each level of a business structure. If a ten percent 

or greater ownership interest exists at any level, that interest must be reported along with the controllers at that level. For 

example, if company "A" owned ten percent of company "B," and company "B" owned ten percent of company "C," and 

company "C" owned ten percent of the applicant, the permit application must list companies "A," "B" and "C" along with 

the controllers of companies "A," "B" and "C." However, if company "A" owned ten percent of company "B", and 

company "B" owned nine percent of company "C," and company "C" owned ten percent of the applicant, the permit 

application would be required to list only company "C" and its controllers. The permit applicant would not be required to 

list company "A" or company "B" because the ownership interest between company "B" and company "C" was less than 

ten percent. 

 If the operator is a business entity and a subsidiary of another corporation, then the operator, its owners and 

controllers and the owners and controllers of the parent corporation must be reported by the permit applicant. The same 

also applies to anyone owning or controlling the coal to be mined by another person under a lease, sublease or other 

contract and having the right to receive such coal after mining or having authority to determine the manner in which that 

person or another person conducts a surface coal mining and reclamation operation. If that person is a business entity and 

a subsidiary of another corporation, then the owners and controllers of the parent corporation must be reported by the 

permit applicant, along with an explanation of how each person is linked in the chain of ownership or control. 

 The requirement of Section 778.13(c) to furnish information on anyone owning or controlling the coal to be mined by 

another person under a lease, sublease or other contract and having the right to receive such coal after mining or having 

authority to determine the manner in which that person or another person conducts a surface coal mining and reclamation 

operation does not apply to persons who receive coal as an in-kind royalty payment. However, simply labeling the receipt 

of coal as in-kind royalty payments will not automatically exempt a person or operation from the reporting requirements 

of this section if the in-kind payment is more than a simple royalty or if the recipient otherwise controls the conduct of 

the surface coal mining operation. 

 Under final Section 778.13(c)(2), the permit applicant must explain each identified person's ownership or control 

relationships to the applicant, including the percentage of ownership and the location of the owner or controller in the 

organizational structure. In the example given above, if company "A" owns ten percent of company "B," and company 

"B" owns ten percent of company "C," and company "C" owns ten percent of the applicant, the permit application must 

list companies "A," "B" and "C" along with the controllers of "A," "B" and "C", and must clearly indicate that "A" owns 

"B," and that "B" owns "C". The applicant must also furnish the percentage of ownership at each level, and when listing 

officers, directors, general partners, and other persons required to be reported, indicate the business entity they work for.

All of the information must be furnished in a manner that will enable the regulatory authority to precisely determine the 

organizational structure of the applicant and its owners and controllers. 

 In the proposed rule at Section 778.13(d), OSMRE requested the "permit or application numbers or other identifiers" 

for all current and previous coal mining permits in the United States during the five year period preceding the date of the 

application. In the final rule, OSMRE has reworded this requirement to "Federal or State permit number, and MSHA 

number with date of issuance." OSMRE has specifically included the MSHA number here and elsewhere in the final rule 

so that there is no doubt the number must be included in the permit application. The date of issuance of the MSHA

number is being asked for because MSHA reassigns previously issued numbers. If a violation is linked to a particular 

MSHA number and the number is later reassigned, the date the number was reassigned will allow the regulatory authority 

to determine that the current site should not be associated with the prior violation. 

 Final Section 778.13(d) will require for any surface coal mining operation owned or controlled by either the applicant 

or by any person who owns or controls the applicant under the definition of "owned or controlled" and "owns or 

controls" in 30 CFR 773.5, the operation's: 

(1) Name, address, identifying numbers, including employer identification number, the Federal or State permit 

number and MSHA number, the date of issuance of the MSHA number, and the regulatory authority; and 

(2) Ownership or control relationship to the applicant, including the percentage of ownership and the location in 

the organizational structure. 
 Section 778.13(i) of the final rule requires that after an application has been approved but before the permit to 

conduct a surface coal mining operation is issued, the applicant shall, as applicable, bring up to date, correct, or indicate

that no change has occurred in the information previously submitted under paragraphs (a) through (d). If the applicant 

fails or refuses to submit the information required under Section 778.13(i), the regulatory authority will not issue the 

permit. The updated information will enable the regulatory authority to make an accurate Section 773.15(b)(1) 

compliance review and to take appropriate action. 

 This provision was proposed on July 16, 1986 (51 FR 25828) as Section 773.15(e)(1)(i). It has been codified in the 

final rule in Section 778.13(i) so that the obligation to update information will be located with the requirement for the 

information that must be updated. 

 Under Section 778.13(j), a permit applicant will be required to submit the information required by Sections 778.13 

and 778.14 in any prescribed format that is issued by OSMRE. In the final rule, OSMRE has substituted the term 

"format" for the term "form." OSMRE has made the substitution to allow for the electronic transfer of data if that can be 

done in a manner compatible with the operation of the Applicant/Violator System. 

 For the present OSMRE contemplates use of a standard form as the prescribed format. If a standard form is issued, 

use of the form will be required by all permit applicants when submitting the information regardless of whether the permit 

application is filed with OSMRE or a State regulatory authority. The form will cover only the information required by 

Sections 778.13 and 778.14, and will be in addition to any permit application forms required by any of the State 

regulatory authorities. 

 Use of a standard form should facilitate the input of legal, financial and compliance data into the Applicant/Violator 

System and help reduce errors when that data is transferred from a permit application to the computer. It should also 

prove helpful to those applying for permits because it will indicate what information must be furnished pursuant to the 

regulations. OSMRE will state on any forms requesting a social security number that the submission of a social security 

number is voluntary. Development and use of any such form will not limit any additional information collection 

requirements of any approved program. 

 

SECTION 778.14 -- VIOLATION INFORMATION 

 Section 778.14(c) will require a permit applicant to submit a list of all violation notices received by the applicant and a 

list of all cessation orders and air and water quality violation notices received by any surface coal mining operation 

owned or controlled by either the applicant, or by any person who owns or controls the applicant, during the three year 

period preceding the application date. The list must cover violations of any provision of the Act, or of any law, rule or 

regulation of the United States, or of any State law, rule or regulation enacted pursuant to Federal law, rule or regulation 

pertaining to air or water environmental protection. The lists also must contain any identifying numbers for the operation, 

including the Federal or State permit number and MSHA number, the date of issuance of the violation notice and MSHA 

number, the name of the person to whom the violation notice was issued, and the name of the issuing regulatory 

authority, department or agency. The purpose of this information is to provide the data necessary to perform the 

compliance review required by section 510(c) of the Act and 30 CFR 773.15(b)(1) prior to making a final decision on 

whether to issue a permit. 

 A violation notice, as defined in 30 CFR 701.5, includes any written notification from a governmental entity of a 

violation of law, whether by letter, memorandum, legal or administrative pleading, or other written communication. 

While all notices of violation (NOV's) are violation notices, not all violation notices are NOV's. For example, a violation 

notice may also be a cessation order issued by a regulatory authority or a notice of noncompliance issued by the 

Environmental Protection Agency. Under Section 778.14(c), the permit applicant must list all violation notices, including 

NOV's, cessation orders, notices of noncompliance, and other citations, regardless of terminology, for any violation of 

any provision of the Act, or of any law, rule or regulation of the United States, or of any State law, rule or regulation 

enacted pursuant to Federal law, rule or regulation pertaining to air or water environmental protection in connection with 

any surface coal mining operation. For any surface coal mining operation owned or controlled by either the applicant or 

by any person who owns or controls the applicant only cessation orders and air and water quality violation notices must 

be reported. 
 The proposed rule would have required the date of issuance of the violation notice, the name of the person to whom 

the violation notice was issued, and the issuing regulatory authority department or agency. In the final rule, OSMRE is 

also requesting any identifying numbers, including the Federal or State permit number and MSHA number associated 

with the operation, and the dates of issuance of the violation notice and MSHA number. This additional information will 

assist the regulatory authority in linking a violation notice to a particular mine site and its owners and controllers. 

 The requirement in the prior regulations to list violation notices, including NOV's, received by any subsidiary, affiliate, 

or persons controlled by or under the common control with the applicant has been deleted for two reasons. First, the 

information concerning NOV's incurred by any subsidiary, affiliate, or persons controlled by or under common control 

with the applicant is not required by the Act and is not needed in view of a presumption contained in revised 30 CFR 

773.15(b)(1). That presumption holds that in the absence of a failure-to-abate cessation order an NOV is presumed to be 

in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation. It is because of 

the presumption that cessation orders but not NOV's must be reported for any surface coal mining operation owned or 

controlled by the applicant or by any person who owns or controls the applicant. In spite of the presumption, all NOV's 

received directly by the applicant must still be reported under revised Section 778.14(c) because section 510(c) of the 

Act requires that an application list all NOV's incurred directly by the applicant. 

 The second reason for revising the previous requirement to list violation notices "received by any subsidiary, affiliate, 

or persons controlled by or under the common control with the applicant" was the desire of OSMRE to eliminate 

confusion and conform the scope and language of the persons about whom information must be submitted with the 

coverage of the compliance review requirements of 30 CFR 773.15 (b)(1) and (b)(3). As revised on October 3, 1988 (53 

FR 38868), those sections do not use the terms "subsidiary," "affiliate" or "common control." Instead they refer to 

operations "owned or controlled by either the applicant or by any person who owns or controls the applicant." 

 Section 778.14(d) of the rule requires that after a surface coal mining and reclamation permit application has been 

approved, but before the permit is issued, the applicant shall, as applicable, bring up to date, correct or indicate that no 

change has occurred in the information previously submitted under Section 778.14(c). If the applicant fails or refuses to 

submit the information required under Section 778.14(d), the regulatory authority will not issue the permit. The updated 

information will enable the regulatory authority to make an accurate Section 773.15(b)(1) compliance review. 

 Section 778.14(d) was proposed on July 16, 1986 (51 FR 25828) as Section 773.15(e)(1)(ii). It has been codified in 

the final rule in Section 778.14(d) so that the requirement to update information will be located with the requirement to 

provide the information that must be updated. 

 

SECTION 843.11 -- CESSATION ORDERS 

 Section 843.11(g) required that where OSMRE is the regulatory authority, within sixty days of the issuance of a 

cessation order, OSMRE must notify all owners and controllers identified pursuant to 30 CFR 778.13(c) that the 

cessation order has been issued and that they have been identified as owners or controllers of the violator. 

 As described earlier in this preamble, Section 773.17(i) of the rule requires a permittee to submit to the regulatory 

authority within thirty days after a cessation order is issued, updated information on its owners and controllers. Upon 

receipt of this information, OSMRE will send the notification required by Section 843.11(g). If updated information is 

not received, OSMRE will send the notice to the persons currently in its records as owners or controllers. 

 OSMRE has added this provision to the final rule for three reasons. First, notification to the owners and controllers 

will insure that they are aware of the violation, and that unless the violation is abated their names will be linked to the 

violation in the Applicant/Violator System. Second, where the person notified of the violation is no longer linked with the 

violator, notification will allow the person to immediately notify the regulatory authority that a link no longer exists. This 

will help prevent any problems in the future for that person should the permittee fail to submit the update information 

required by Section 773.17(i) indicating that the link no longer exists or if it submits erroneous information. Third, where 

the violator is a corporation, the notification to the individual owners and controllers will also provide a basis for the 

assessment of an individual civil penalty under section 518(f) of the Act and 30 CFR Part 846 or the State program 

equivalent. 
 Since this section contains a procedural requirement relating to enforcement sanctions, pursuant to Section 840.13(c) 

each state regulatory authority must adopt the same or similar requirements. 

 

III. DISCUSSION OF PUBLIC COMMENTS 

 One commenter objected to the rule on procedural grounds. The commenter said that the proposed rule was based on 

the April 16, 1986 (51 FR 12879) option for defining ownership and control, and not on the option published for 

comment on May 4, 1987 (52 FR 16275). The commenter said that the data collection requirements varied dramatically 

between the two proposed definitions of ownership and control, and that it was not possible for the public to comment 

intelligently on the agency's approach to data collection. The commenter said that this failure violated the basic tenets of 

the Administrative Procedure Act (APA). 

 OSMRE disagrees. The APA requires that an agency publish "either the terms or substance of the proposed rule or a 

description of the subjects and issues involved." 5 U.S.C. 553(b)(3). OSMRE complied with this requirement on May 28, 

1987 (52 FR 20032) when it published proposed rule language which would conform the permit application requirement 

in Sections 778.13 and 778.14 with the April 16, 1986 option for the definition for "owned or controlled" and "owns or 

controls." The requirements adopted in this rule are substantially similar to those published on May 28, 1987. The 

requirements published on May 28, 1987 were based on the April 16, 1986 option because the definitions discussed in 

that option were more inclusive than the option published on April 5, 1985 (50 FR 13724). 

 In the May 28, 1987 notice, OSMRE also stated that if the May 4, 1987 option for the definition were selected rather 

than the April 16 option, the information reporting requirements might be changed, and indicated the nature of the 

change and specifically requested comments on alternative reporting requirements. Thus, this rule complies with the 

requirements of the APA. 

 One commenter objected to including in the rule any provision which would require an applicant to submit any 

information other than that specifically required by section 507(b) of the Act. The commenter argued that since the 

Congress articulated, with specificity, precise permit information requirements with respect to the applicant's corporate 

officers and owners, it was arbitrary and capricious for OSMRE to impose more expansive information reporting 

requirements. In support for this position, the commenter cited In re: Permanent Surface Mining Regulation Litigation, 

14 E.R.C. 1083, 1097 (D.D.C. February 26, 1980). 

 OSMRE disagrees. The case cited by the commenter dealt with the narrow issue of whether the Secretary of the 

Interior could require the submission of hydrologic information for areas outside a permit area. In its decision the court 

concluded that the Congress articulated, with specificity, those instances in which hydrologic information outside the 

permit area was necessary, and consequently the Secretary's requirements which went beyond those instances specified 

by the Congress were arbitrary and capricious. Id. 

 “In the case of In re: Permanent Surface Mining Regulation Litigation, 653 F.2d 514 (D.C. Cir. 1981), cert. denied, 

454 U.S. 822 (1981), the U.S. Court of Appeals for the District of Columbia Circuit decided the question of whether the 

Secretary had rulemaking authority to require a permit applicant to submit any items of information beyond those 

enumerated in the Act. The court held that the Act's explicit listings of permit information were not exhaustive and did 

not preclude the Secretary from requiring additional information needed to ensure compliance with the Act.”

 

Id. at 527. The court held that both sections 201(c)(2) and 501(b) of the Act provide adequate authority for the 

Secretary to require the submission of additional information. 

 Section 201(c)(2) authorizes the Secretary to "publish and promulgate such rules and regulations as may be necessary 

to carry out the purposes and provisions of this Act." Section 501(b) directs the Secretary to promulgate regulations 

"establishing procedures and requirements for preparation, submission and approval of State programs." 

 In addition to the two sections cited by the court, support for the rule may also be found in sections 201(c)(1), 507(b), 

510(c) and 517(b)(1)(E) of the Act. The rule aids implementing the section 102(c)(1) requirement that permits be 

withheld for noncompliance with the Act. Section 507(b) requires the identification of owners and controllers, and also 

requests information on any suspension, revocation or bond forfeiture incurred by the applicant or any subsidiary, affiliate 

or person controlled by or under common control with the applicant in the five years preceding the date of the 
application. Section 510(c) requires a listing of all notices of violation incurred by the applicant during the three year 

period preceding the date of the application. Section 517(b)(1)(E) authorizes the regulatory authority to require any 

permittee to provide such other information relative to surface coal mining and reclamation operations as the regulatory 

authority deems necessary for purposes of developing or assisting in the development, administration and enforcement of 

any approved State or Federal program, or of determining whether any person is in violation of any requirement of any 

such State or Federal program. It is evident, therefore, that the Secretary has ample authority to adopt the information 

reporting requirements contained in this rule. 

 One commenter said that the final Section 733.15(b)(1) compliance review required by Section 773.15(e) should be 

limited to any new information received in the information update required by Sections 778.13(i) and 778.14(d). 

Presumably the comment was made out of concern that the final compliance review could delay the issuance of the 

permit. 

 OSMRE believes that the final compliance review will not be a time-consuming process. When the updated 

information is submitted by the applicant pursuant to Sections 778.13(i) and 778.14(d) of this rule, OSMRE or the 

appropriate State regulatory authority will enter the information into the Applicant/Violator System. Both the initial and 

the second Section 773.15(b)(1) compliance review may be made using the Applicant/Violator System. Use of the 

computer-based system to make the review will take very little time and should not result in a delay in the issuance of the 

permit if the updated information does not result in a match between the applicant and a violator. 

 One commenter stated that a permit should be rescinded if the permittee failed to comply with the requirement of 

Section 773.17(i) to update certain information on its owners and controllers on an annual basis. In the proposed rule 

OSMRE stated that failure to submit the information could result in rescission of the permit. 

 As previously discussed, the updating requirement in Section 773.17(i) has been changed in the final rule to make it 

contingent upon the issuance of a cessation order. Once such a provision is incorporated into a regulatory program, if the 

permittee fails to furnish the required information, the permittee will have violated a permit condition and be subject to 

appropriate enforcement measures under the applicable regulatory program. 

 One commenter requested clarification concerning the requirement in Section 778.13(b) to furnish the name, address 

and telephone number of the person who will pay the abandoned mine land reclamation fee. The commenter wanted to 

know if the regulation required the submission of an organization such as a bank, or the name of a particular person at 

the bank who would make the payments on behalf of the operator. 

 The term person is defined in section 701(19) of the Act to mean an individual, partnership, association, society or 

joint stock company, firm company, corporation or other business organization. Consequently, if a financial institution 

makes the required payment for the operator the name of the institution would suffice. The name of the person actually 

paying the abandoned mine land reclamation fee on behalf of the operator is being requested in order to facilitate requests 

for audits and financial information. 

 Several commenters objected to the requirement in Section 778.13(i) and 778.14(d) of the rule for an applicant to 

submit updated information at the time a permit is approved but before it is issued. One commenter objected on the 

grounds that the Act requires that the information be submitted only once, and that the requirement to update the permit 

application information immediately prior to the issuance of the permit would be burdensome. 

 OSMRE disagrees. The commenter submitted no evidence to support the assertion that the requirement would be 

burdensome. The requirement could be burdensome only if numerous changes had occurred since the permit application 

was submitted. Where such changes have occurred in the ownership or control of the proposed mining operation or in 

the type and number of outstanding violations, it is only appropriate that the compliance history of the permit applicant 

and its owners and controllers be reviewed to insure that the permit is not issued in violation of section 510(c) of the Act. 

 Another commenter said that the proposed requirement to update the information in the permit application at the time 

of the submission of the bond would destroy the two-step process envisioned by the Act for permit issuance. The 

commenter stated that the decision to issue the permit should be based on the material submitted with the permit 

application, and the decision to accept the bond should be based on satisfaction of the bonding requirements in section 

509 of the Act. 
 OSMRE disagrees. There is nothing in the Act to prevent the Secretary from requiring that the permit application be 

complete and accurate at the time of permit issuance. Clearly, it is the intent of the Congress that the permit be issued 

based on accurate information contained in the permit application. 

 Another commenter said that any delays between the submission of the permit application and the issuance of the 

permit were caused by the regulatory authority. Therefore, the commenter concluded, the applicant should not be 

required to update the information in the application. 

 OSMRE disagrees. Very often the delay between the time when a permit application is submitted and when the permit 

is issued is the result of factors such as the large size of the planned mining operation, the extent of the mining plan, 

requests for clarification concerning information in the permit application, or the need to prepare environmental 

documents. The lapse of time caused by such factors can be minimized but not entirely avoided. The only way of insuring 

that the permit is approved based on current information is to require that the information be updated. It is to the 

advantage of the permit applicant to update the information in the application in order to insure that the permit is issued 

based on accurate information. 

 One commenter suggested that the entire package of compliance information should be required only once at the time 

of bond submittal. 

 The suggestion to have the compliance information submitted only at the time the bond is submitted could delay the 

issuance of a permit. If the compliance information is submitted only at the time the bond is submitted, OSMRE or a 

State regulatory authority would not be able to conduct a compliance review until the very end of the permit application 

review process. By requiring the information to be submitted in the beginning, the regulatory authority is able to make an 

initial compliance review of the application and alert the applicant to any potential problem early enough to give the 

applicant sufficient time to correct it or to submit information indicating that the results of the initial compliance review

were erroneous. This process should reduce or eliminate delays in the issuance of a permit. In addition, the regulatory 

authority's communication with the applicant at the outset concerning any problem that could preclude permit issuance 

will allow the regulatory authority to avoid expending resources on technical review of a permit application until a 

substantial likelihood exists that withholding of the permit will not be required. 

 One commenter suggested that OSMRE should have the responsibility to update that information at the time of permit 

issuance, based upon the information contained in the original application and OSMRE records. 

 OSMRE disagrees. The regulatory authority cannot totally update information without assistance from the applicant 

because it would have no way of knowing who any new owners or controllers of the applicant may be or what new 

violations may exist, but have not yet been entered into the Applicant/Violator System. 

 One commenter objected to the rule on the grounds that it did not require sufficient information concerning the 

rebuttable presumptions contained in the definition of "owned or controlled" and "owns or controls". The commenter 

argued that the rule should require the submission of information describing the role of each officer in a company, and the 

legal authority and duties of each director. In effect, the commenter wanted a permit applicant to submit sufficient 

information to either rebut or confirm the presumptions contained in the definition of ownership and control. The 

commenter was concerned that if the information were submitted at the time of a permit block, the individuals linked to a 

violator would "come forth on a piece-meal basis with self-selected information" to rebut the presumption. 

 OSMRE did not adopt the commenter's suggestion. Under the definition at 30 CFR 773.5 certain relations create a 

presumption of ownership or control. For example, owning at least ten percent of the applicant, or being an officer, 

director, general partner, or operator of the applicant results in a presumption of control. However, for the purpose of 

processing permit applications a presumption of control is important only if there is an outstanding violation to which a 

shareholder, officer, director, general partner, operator or other person covered by the definition is linked. If there is a 

violation, then it becomes important to determine if the control presumed by the rule does not in fact exist. OSMRE 

believes that it would result in an unreasonable expenditure of time, effort and resources by both the regulatory authority 

and the permit applicant if the regulations were to require all permit applicants to submit the information needed to rebut 

a presumption of control if no link to a violation existed and therefore there was no reason to rebut the presumption. An 

applicant can always submit the information if the compliance review indicates a link between an applicant and a violator. 
Once the link is discovered, both the applicant and the regulatory authority can focus their attention on the specific 

relationship in question and will know what information is actually needed to rebut the presumption. 

 One commenter objected to the exception in Section 778.14(c) of the rule, which does not require the permit 

applicant to report all notices of violation (NOV's). Section 778.14(c) requires that only NOV's incurred directly by the 

applicant be reported. NOV's incurred to surface coal mining and reclamation operations owned or controlled by the 

applicant or by anyone who owns or controls the applicant need not be reported. The commenter argued that all NOV's 

should be listed and that they should be taken into consideration during the compliance review because the absence of a 

cessation order does not indicate the absence of a violation. The commenter further argued that the receipt of an NOV 

serves as an important indicator of an applicant's willingness and ability to comply with necessary legal restrictions and 

permit requirements. 

 OSMRE did not adopt the commenter's suggestion that NOV's incurred by operations owned or controlled by the 

applicant or by anyone who owns or controls the applicant be reported. Section 778.14(c) as adopted complies with the 

requirements of section 510(c) of the Act. That section requires that notices of violations incurred "by the applicant" be 

listed. The Act does not require that notices of violations incurred at surface coal mining operations owned or controlled 

by the applicant or by any person who owns or controls the applicant be reported. OSMRE believes that the exception to 

reporting NOV's incurred by operations owned or controlled by the applicant or by any person who owns or controls the 

applicant is reasonable in view of the Secretary's revision of the scope of the compliance review in Section 773.15(b)(1) 

and the presumption contained in that section that "in the absence of a failure-to-abate cessation order, the regulatory 

authority may presume that a notice of violation has been or is in the process of being corrected to the satisfaction of the 

agency with jurisdiction over the violation, except where evidence to the contrary is set forth in the permit application." 

 In addition to the above, the Secretary is adding to the regulations in Section 778.14(d) a new requirement. That 

section requires that after the approval of the permit, but before its issuance, the permit applicant must bring up to date, 

correct, or indicate no change has occurred in the violation information previously submitted pursuant to Section

778.14(c). Consequently, any unreported NOV's which were outstanding at the time the permit application was filed, and 

for which a cessation order was subsequently issued prior to the issuance of the permit, would have to be reported in the 

information update required immediately prior to the issuance of the permit, and would result in the permit being blocked 

unless the violation was in the process of being abated or else was the subject of a good faith appeal, in which case the 

permit would be conditionally issued. 

 Several commenters said that the information reporting requirements of the rule would be very burdensome. As an 

example, one commenter said that an existing company might be required to list on a permit application the names and 

addresses of one direct parent company, five second generation parent corporations (none of whom were primarily 

engaged in coal production), and an unknown number of third generation owners holding ten percent or more of the 

stock of the five second generation owners; three affiliates which are coal producing companies and ten affiliates which 

are not; in addition to officers, directors and violations of all of the above. By the commenter's calculations, the permit 

applicant would be required to list information for forty-three surface coal mining operations in ten States. 

 OSMRE is aware that for some large corporations the reporting requirements of this rule could be extensive. After the 

initial compilation of such material, however the incremental amount of effort to maintain and update the data for future 

applications would be less than the initial effort. These requirements are well within the discretion granted to the 

Secretary by the Act and are necessitated by the complex business structures created by companies mining coal. 

 One commenter disagreed with OSMRE's determination that the time and effort required to fulfill the data collection 

requirements of this rule would be minimal. The commenter said that the operating costs, time and effort involved in 

complying with the rule would have a substantial impact on all companies regardless of size. The commenter said that the 

annual updating of permit information could easily require an additional man-year or more to track all corporate 

personnel changes and violations and their ultimate resolution. 

 OSMRE's determination of the impact of the rule was based on calculations contained in its Determination of Effects, 

which indicates that in 1985, 73.4% of all operations could be classified as small operations. The result would be that 

most operations would not need much time to gather, organize and mail information required under the rule. The 

commenter did not submit any evidence to support the assertion that one man-year or more would be required. 

Moreover, the commenter said that many companies have already developed their own computerized data processing 
systems to track some of the required information. This should minimize any increase in burden that might result. Also, in 

order to address concerns about the information reporting requirements, OSMRE did not adopt an annual update. 

Instead, updated information is required only after a cessation order is issued. Thus companies acting in compliance with 

their permits, or who abate violations within the time specified in a notice of violation can avoid having to submit updates 

of ownership and control information. 

 One commenter said that the regulatory authority should collect ownership information up and down the corporate 

chain. The commenter stated that requiring such information will not place a burden on coal companies because this data 

should be readily available in coal company records. 

 OSMRE agrees that such information must be submitted in a permit application. The rule requires the submission of 

information on owners and controllers of the permit applicant as well as mining operations owned or controlled by the 

applicant. See Section 778.13 (c) and (d) of the rule and the preamble discussion of those two sections. 

 One commenter asked for clarification of how OSMRE would determine control based on indirect ownership. For an 

example and discussion of indirect ownership, see the OSMRE final rule defining "owned or controlled" and "owns or 

controls," published on October 3, 1988 (53 FR 38868) at page 38874. 

 One commenter objected to the requirement in Section 778.13(j) for the use of a standard form to report the 

information required by this rule because it could cause additional burdens for the many companies that have already 

developed their own data processing systems to track some of the required information. 

 OSMRE believes that use of a standard form to report the information required by this rule can assist those applying 

for a permit application by indicating on the face of the form what information they must submit with regard to the 

identification of interests and violation history. Also, the use of a standard form can assist OSMRE and the State 

regulatory authorities in entering the information from the permit application into the Applicant/Violator System and 

minimize the amount of data entry error that might result. Any additional burden the use of a standard form might impose 

would be offset by these important advantages. 

 One commenter said that a permit applicant should be required to list all violations for which a permit block can be 

imposed. 

 OSMRE disagrees. While it is true a permit block can be imposed for violations an applicant is not required to list, 

OSMRE does not believe that it is necessary for the permit applicant to submit all of the information for which a permit 

block may be imposed because much of the information already is available to OSMRE and the State regulatory 

authorities. Final Section 778.14(c) and the existing regulations in Section 778.13 (a) and (b) together require the 

submission of most of the information suggested by the commenter, with the exception of outstanding Federal and State 

civil penalties and delinquent AML fees. 

 With regard to outstanding Federal civil penalties and delinquent AML fees, OSMRE has two computer-based 

systems which supply Federal violation data to the Applicant/Violator System. One is the Collection Management 

Information System (CMIS), and the other is the Abandoned Mine Land Fee Collection System (AML System). CMIS 

contains information on all delinquent Federal civil penalties while the AML System contains information on delinquent 

AML fees. With regard to delinquent State civil penalties, OSMRE intends to collect the relevant data and add it to the 

Applicant/Violator System at a later date after the quality of the data has been checked. 

 One commenter suggested that the rule should include a general provision which requires ownership and control 

information for anyone in an ownership or control relationship with the applicant or operator. For example, the 

commenter said, family members are frequently used as shams or fronts by irresponsible coal operators, and it would be a 

minimal burden to the applicant and the operator to list immediate family members who have mined in the past five years. 

The commenter also suggested that information be requested on mine managers, subcontractors and mine foremen. 

 OSMRE did not adopt the commenter's suggestion. The final rule at Section 778.13(c) requests information for any 

person who owns or controls the applicant under the definition of "owned or controlled" and "owns or controls" at 30 

CFR 773.5. Under Section 778.13(c) the permit applicant is required to list the operator and those who own or control 

the operator. 
 If a family member, mine manager or subcontractor controls the applicant, there is an obligation under Sections

778.13(c) and 773.5(a)(3) to list that person in the permit application. However, the rule does not specifically require 

information when control does not exist. First, the Act does not require OSMRE to collect such information, and second, 

the Congress has imposed limitations on information collection. OSMRE, like all other Federal agencies, is required by 

the Congress to reduce where possible the information collection burden it imposes on the public. In order to do this 

OSMRE has limited the information reporting requirements of this rule to those specifically required by the Act or clearly 

necessary for the compliance review required by 30 CFR 773.15(b). There has to be some reasonable limit on the 

information collected for the compliance review. If OSMRE were to request all data which may be useful but not 

essential for performing the compliance review, the data when added to that already required by other sections of the Act 

and regulations would be difficult and expensive to process for both the permit applicant and the regulatory authority. 

 The regulations at 30 CFR 773.13(b) allow for public participation in the permitting process. Through that process, 

the regulatory authority can receive, and often does receive, pertinent information about the permit applicant and its 

owners and controllers, which may affect the permitting decision. 

 One commenter said that there should be a specific requirement for the applicant to state whether the proposed 

operation is a contract mine, and if so, the applicant should be required to list the entity or entities involved in that 

relationship. The commenter stated that ownership and control information should be required for both parties to the 

contract, and a copy of the contract should be required as part of the permit application, If the contract is oral, its basic 

provisions should be described in the application. 

 OSMRE agrees in part. The rule in Section 778.13(c) requires that the permit application contain the name of any 

person owning or controlling coal to be mined under the proposed permit under a lease, sublease or other contract, and 

having the right to receive such coal after mining or having authority to determine the manner in which the proposed 

surface coal mining operation is to be conducted. Section 778.13(e) requires that the permit application contain the name 

and address of each legal or equitable owner of record of the mineral property to be mined and each leaseholder of 

record of any leasehold interest in the property to be mined. Consequently, with the exception of the terms of the 

contract, information concerning the parties to a contract mining operation, where control is presumed, is required by the 

rule. Information on the contracts of other mines is not needed unless the contracts result in control over the mines. 

Although the submittal of every contract would reduce the likelihood of the regulatory authority not discovering control 

relationships, a requirement for applicants to submit and regulatory authorities to review such information appears overly 

burdensome. 

 Under the definition of "owned or controlled" and "owns or controls" at 30 CFR 773.5, there is a presumption of 

control for any person who owns or controls coal to be mined by another person under a lease, sublease or other contract 

and has the right to receive this coal after mining or has authority to determine the manner in which the other person 

mines the coal. If a presumption of control exists in a particular permitting situation, the permit applicant may rebut the 

presumption if the compliance review indicates a link between the applicant and the violator. In order to rebut the 

presumption in a contract mining situation, the applicant would be required, at a minimum, to submit the terms of the 

contract for examination. OSMRE does not believe that it should require the submission of the contract until such time as 

there is a need to rebut the presumption of control because of a potential permit block. 

 The same commenter also wanted the permit application to contain information on past contract mining operations of 

the applicant and operator along with the permit number, Mine Safety Health Administration (MSHA) number, and any 

outstanding violations. 

 OSMRE agrees in part with the commenter. This information with regard to past contract mining operations owned or 

controlled by the applicant is required by the rules in Sections 778.13(c)(4) and 778.14(c)(1). 

 One commenter suggested that previous Section 778.14(c) should be retained without change. Prior to revision, 

Section 778.14(c) required information on violation notices received by the applicant or any subsidiary, affiliate or 

persons controlled by or under common control with the applicant. As revised, Section 778.14(c) requires information on 

violation notices received by the applicant or any surface coal mining operation owned or controlled by the applicant or 

by anyone who owns or controls the applicant. 
 OSMRE declined to adopt the commenter's suggestion. The language adopted in Section 778.14(c) mirrors the 

language in 30 CFR 773.15(b)(1) governing compliance review. The language is no less inclusive than the compliance 

review required by section 773.15(b)(1), and in fact results in a review of companies under common control with the 

applicant. Use of this same terminology in both Sections 778.14(c) and 773.15(b)(1) will eliminate confusion. 

 One commenter stated that Section 778.14(c) of the rule should require the applicant to include the status of any 

violation. This information is already required by Section 778.14(c)(4) of the existing regulations. 

 One commenter also suggested that the permittee be required to submit updated information on an annual basis 

concerning all outstanding violations previously reported pursuant to Section 778.14(c). 

 OSMRE disagrees. The violation information submitted with the permit application is needed for the compliance 

review required by Section 773.15(b)(1). Once that review has been completed and the permit issued an update is not 

needed because any violation which occurs after the issuance of a permit will not affect the validity of the permit, and any 

violation which has already been reported pursuant to Section 778.14(c) will remain in the records of the regulatory 

authority until the violation is abated. 

 One commenter requested clarification of the responsibility of the regulatory authority with regard to verifying the 

information supplied by the permit applicant or challenging any information the regulatory authority has reason to believe 

may be incorrect. 

 The regulatory authority may independently verify the information contained in a permit application if it has reason to 

believe that the information is either inaccurate or incomplete. If the regulatory authority determines that the permit 

application is inaccurate or incomplete it may refuse to process the application until the missing information is submitted, 

or it may block the permit because of a violation or an ownership or control relationship discovered as a result of its own 

investigation. In either event, the regulatory authority should notify the permit applicant to submit additional information, 

which may indicate that the application is in fact accurate and complete or that a permit should be issued because there is 

no ownership or control link between the applicant and the violator. After such notice, the burden to respond is on the 

applicant. 

 One commenter suggested that the permittee be required to update the information at midterm review rather than on 

an annual basis, and to make any other updates only if changes occur. Another commenter suggested that updates be 

made only at the time of permit revision. 

 OSMRE did not adopt these suggestions. As previously discussed, the final rule requires a permittee to update the 

information contained in the permit application within thirty days of the issuance of a cessation order for the permitted 

site. OSMRE believes that it will be more advantageous to request the information at the time of a violation rather than 

on an annual basis. If no violation has occurred at midterm, there is no need for an information update. If a violation has 

occurred prior to an application for a permit revision, then the updated information is needed so that appropriate 

alternative enforcement action may be taken if necessary. 

 

IV. PROCEDURAL MATTERS 

 

Effect in Federal Program States and on Indian Lands 

 The rule will apply through cross-referencing to the following Federal program States: California, 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 905, 910, 912, 921, 922, 933, 937, 939, 941, 942 and 947, 

respectively. Comments were specifically solicited in the proposed rule as to whether unique conditions existed in any of 

these States relating to the proposal which should be reflected in the final rule either as changes to the national rules or as 

State-specific amendments to any or all of the Federal programs. No comments were received. The rule also applies 

through cross-referencing to Indian lands under the Federal program for Indian lands as provided in 30 CFR Part 750. 

 

Effect on State Programs 

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

section 503 of the Act to determine any changes in these programs that will be necessary. When 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 provision of 30 CFR 732.17. 

 

Paperwork Reduction Act 

 The information collection requirements contained in this rule have been approved by the Office of Management and 

Budget as required by 44 U.S.C. 3501 et seq., and assigned clearance numbers 1029-0034 and 1029-0041. 

 The public reporting burden for this information is estimated to average one hour per response for Section 773.17(i), 

and 13.5 hours per response for the sections located in Part 778 amended by this rule. The estimate includes the time for 

reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and 

reviewing the collection of information. You may send comments regarding these burden estimates or any other aspect of 

this collection of information, including suggestions for reducing the burden, to Information Collection Clearance Officer, 

Office of Surface Mining Reclamation and Enforcement, 1951 Constitution Avenue NW., Washington, DC 20240; and 

the Office of Management and Budget, Paperwork Reduction Project (1029-0034), Washington, DC 20503. 

 The information is needed to meet the requirements of sections 201, 507 and 510 of Pub. L. 95-87. The information 

will be used by OSMRE in reviewing and approving permit applications. Except for the disclosure of a social security 

number, the obligation to respond is mandatory in accordance with sections 201(c)(1), 201(c)(2), 501(b), 507(b), 510(c) 

and 517(b)(1)(E). 

 

Executive Order 12291 

 The Department of the Interior has examined the rule according to the criteria of Executive Order 12291 (February 

17, 1981) and has determined that it is not major and does not require a regulatory impact analysis. This determination is 

based on the findings that the regulatory revisions and additions of this rule will cause very little increase in the costs of 

operating a mine in a manner that meets the requirements of the Act. Further, there will be no significant impacts on 

competition, employment, productivity, innovation or on the ability of U.S.-based enterprises to compete with 

foreign-based enterprises. 

 

Regulatory Flexibility Act 

 The Department of the Interior has also determined, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 

that the proposed rule will not have a significant economic impact on a substantial number of small entities because 

although the rule will impose new regulatory burdens on small entities, the time and effort required for a small entity to 

fulfill the additional data collection requirements will be minimal. 

 

National Environmental Policy Act 

 The rule has been reviewed by OSMRE and it has been determined to be categorically excluded from the National 

Environmental Policy Act (NEPA) process in accordance with the Department of the Interior Manual (516 DM 2, 

Appendix 1.10) and the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of 

NEPA (40 CFR 1507.3). 

 

Author 

 The principal author of this rule is Andrew F. DeVito, Office of Surface Mining Reclamation and Enforcement, 1951 

Constitution Avenue NW., Washington, DC 20240; Telephone: 202-343-5241 (Commercial or FTS). 

 

LIST OF SUBJECTS 

 

30 CFR Part 773 

 Administrative practice and procedure, Reporting and recordkeeping requirements, Surface mining, Underground 

mining. 

 

30 CFR Part 778 

 Reporting and recordkeeping requirements, Surface mining, Underground mining. 

 

30 CFR Part 843 

 Administrative practice and procedure, Law enforcement, Reporting and recordkeeping requirements, Surface mining, 

Underground mining. 
 Accordingly, 30 CFR Parts 773, 778 and 843 are amended as set forth below. 

Date: December 8, 1988. 

James E. Cason, Deputy Assistant Secretary -- Land and Minerals Management. 

PART 773 -- REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING 

 1. The authority citation for Part 773 continues 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 et seq., 16 U.S.C. 469 et seq., 16 U.S.C. 470aa et seq., and Pub. L. 100-34. 

 2. Section 773.15 is amended by adding paragraph (e) to read as follows: 

SECTION 773.15 - REVIEW OF PERMIT APPLICATIONS. 

 

* * * * * 

 (e) Final compliance review. After an application is approved, but before the permit is issued, the regulatory authority 

shall reconsider its decision to approve the application, based on the compliance review required by paragraph (b)(1) of 

this section in light of any new information submitted under Sections 778.13(i) and 778.14(d) of this chapter. 

 3. Section 773.17 is amended by adding paragraph (i) to read as follows: 

 SECTION 773.17 - PERMIT CONDITIONS. 

 

* * * * * 

 (i) Within thirty days after a cessation order is issued under Section 843.11 of this chapter, or the State program 

equivalent, for operations conducted under the permit, except where a stay of the cessation order is granted and remains 

in effect the permittee shall either submit to the regulatory authority the following information, current to the date the 

cessation order was issued, or notify the regulatory authority in writing that there has been no change since the 

immediately preceding submittal of such information: 

 (1) Any new information needed to correct or update the information previously submitted to the regulatory authority 

by the permittee under Section 778.13(c) of this chapter; or 

 (2) If not previously submitted, the information required from a permit applicant by Section 778.13(c) of this chapter. 

 PART 778 -- PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR LEGAL, FINANCIAL, 

COMPLIANCE AND RELATED INFORMATION 

 4. The authority citation for Part 778 is revised to read as follows: 

 Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., and Pub. L. 100-34. 
 5. Section 778.10 is revised to read as follows: 

 SECTION 778.10 - INFORMATION COLLECTION. 

 The information collection requirements contained in Part 778 have been approved by the Office of Management and 

Budget under 44 U.S.C. 3507 and assigned clearance number 1029-0034. The information is being used to meet the 

requirements of sections 201, 507(b), 508(a), and 510(c) of the Act, which require that persons conducting surface coal 

mining operations submit to the regulatory authority relevant information regarding ownership and control of the 

property to be affected by such operations, compliance status and history. This information will be used by the regulatory 

authority to insure that all legal, financial and compliance requirements are satisfied prior to making a decision to issue or 

deny a permit under the permanent regulatory program. Except where specifically noted, the obligation to respond is 

mandatory in accordance with sections 201(c)(1), 201(c)(2), 501(b), 507(b), 510(c), and 571(b)(1)(E). 

 6. Section 778.13 is amended by revising the introductory text and paragraphs (b), (c) and (d), and by adding 

paragraphs (i) and (j) to read as follows: 

 SECTION 778.13 - IDENTIFICATION OF INTERESTS. 

 An application shall contain the following information, except that the submission of a social security number is 

voluntary: 

 

* * * * * 

 (b) The name, address, telephone number and, as applicable, social security number and employer identification 

number of the: 

 (1) Applicant; 

 (2) Applicant's resident agent; and 

 (3) Person who will pay the abandoned mine land reclamation fee. 

 (c) For each person who owns or controls the applicant under the definition of "owned or controlled" and "owns or 

controls" in Section 773.5 of this chapter, as applicable: 

 (1) The person's name, address, social security number and employer identification number; 

 (2) The person's ownership or control relationship to the applicant, including percentage of ownership and location in 

organizational structure; 

 (3) The title of the person's position, date position was assumed, and when submitted under Section 773.17(i) of this 

chapter, date of departure from the position; 

 (4) Each additional name and identifying number, including employer identification number, Federal or State permit 

number, and MSHA number with date of issuance, under which the person owns or controls, or previously owned or 

controlled, a surface coal mining and reclamation operation in the United States within the five years preceding the date 

of the application; and 

 (5) The application number or other identifier of, and the regulatory authority for, any other pending surface coal 

mining operation permit application filed by the person in any State in the United States. 

 (d) For any surface coal mining operation owned or controlled by either the applicant or by any person who owns or 

controls the applicant under the definition of "owned or controlled" and "owns or controls" in Section 773.5 of this 

chapter, the operation's: 

 (1) Name, address, identifying numbers, including employer identification number, Federal or State permit number and 

MSHA number, the date of issuance of the MSHA number, and the regulatory authority; and 

 (2) Ownership or control relationship to the applicant, including percentage of ownership and location in 

organizational structure. 

 

* * * * * 

 (i) After an applicant is notified that his or her application is approved, but before the permit is issued, the applicant 

shall, as applicable, update, correct or indicate that no change has occurred in the information previously submitted under 
paragraphs (a) through (d) of this section. 

 (j) The applicant shall submit the information required by this section and by Section 778.14 of this part in any 

prescribed OSMRE format that is issued. 

 7. Section 778.14 is amended by revising the introductory text, the introductory text to paragraph (c), and paragraph 

(c)(1) and by adding paragraph (d) to read as follows: 

 SECTION 778.14 - VIOLATION INFORMATION. 

 Each application shall contain the following information: 

 

* * * * * 

 (c) For any violation of a provision of the Act, or of any law, rule or regulation of the United States, or of any State 

law, rule or regulation enacted pursuant to Federal law, rule or regulation pertaining to air or water environmental 

protection incurred in connection with any surface coal mining operation, a list of all violation notices received by the 

applicant during the three year period preceding the application date, and a list of all unabated cessation orders and 

unabated air and water quality violation notices received prior to the date of the application by any surface coal mining 

and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the 

applicant. For each violation notice or cessation order reported, the lists shall include the following information, as 

applicable: 

 (1) Any identifying numbers for the operation, including the Federal or State permit number and MSHA number, the 

dates of issuance of the violation notice and MSHA number, the name of the person to whom the violation notice was 

issued, and the name of the issuing regulatory authority, department or agency; 

 

* * * * * 

 (d) After an applicant is notified that his or her application is approved, but before the permit is issued, the applicant 

shall, as applicable, update, correct or indicate that no change has occurred in the information previously submitted under 

this section. 

 PART 843 -- FEDERAL ENFORCEMENT 

 7. The authority citation for Part 843 continues to read as follows: 

 Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., and Pub. L. 100-34. 

 8. Section 843.11 is amended by adding paragraph (g) to read as follows: 

 SECTION 843.11 - CESSATION ORDERS. 

* * * * * 

 (g) Where OSMRE is the regulatory authority, within sixty days after issuing a cessation order, OSMRE shall notify in 

writing any person who has been identified under Sections 773.17(i) and 778.13 (c) and (d) of this chapter as owning or 

controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or 

controller. 

[FR Doc. 89-4755 Filed 3-1-89; 8:45 am] 

 BILLING CODE 4310-05-M