This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

1

4310-05-P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 733 and 842

Docket ID: OSM-2022-0009; S1D1SSS08011000SX064A000245S180110; S2D2S 

SS08011000SX064A0024XS501520

RIN 1029-AC81

Ten-Day Notices and Corrective Action for State Regulatory Program Issues

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final Rule.

SUMMARY: The Department of the Interior is amending its regulations related to the 

Office of Surface Mining Reclamation and Enforcement’s (OSMRE’s) notifications to a

State regulatory authority of a possible violation of any requirement of the Surface 

Mining Control and Reclamation Act of 1977 (SMCRA). The final rule also amends the 

Federal regulations regarding corrective actions for State regulatory program issues. 

Together, the updates to these two areas of the Federal regulations amend the overall 

“ten-day notice” (TDN) process and OSMRE’s oversight process. After consideration of 

the public comments received on the proposed rule, the Department is finalizing the rule 

as proposed with one exception regarding issuance of a single TDN for substantively 

similar possible violations on two or more permits. As explained in the preamble to the 

proposed rule, the primary goals of this rulemaking are to reduce burdens for citizens to 

provide input in OSMRE’s oversight and enforcement process, establish procedures for 

OSMRE to properly evaluate and process citizen allegations about possible SMCRA 
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

2

violations in a timely fashion, clearly set forth the regulatory requirements for OSMRE’s

TDN process, and continue to minimize the duplication of inspections, enforcement, and 

administration of SMCRA.

DATES: This rule is effective [INSERT DATE 30 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER.] 

FOR FURTHER INFORMATION CONTACT: William R. Winters, (865) 545 –

4103, ext. 170, bwinters@osmre.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background 

A. Primary Provisions of SMCRA Supporting the Final Rule

B. Key Regulatory Provisions of the Final Rule and their Purposes

i. Information Used for “Reason to Believe” Determinations

ii. Types of Possible Violations

iii. State Regulatory Authorities as “Any Person” for TDN Purposes

iv. Definitions

v. Time Frames

a. State Regulatory Program Issues

b. Good Cause for Not Taking Action

vi. Contacting the State Regulatory Authority before OSMRE

vii. Citizen Justification for Possible Violation 

viii. Citizen Complaints as Requests for Federal Inspections

ix. Action Plans as Appropriate Action
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3

x. Similar Possible Violations

II. Summary of Changes from the Proposed Rule

III. General Public Comments and Responses

A. Rule Basis and Justification

B. Burden Reduction and Duplication of Work

C. Consultation with States Before and During This Rulemaking

D. State Primacy

E. “Any Person” Who Can Be in Violation of SMCRA

F. Permit Defects

G. Procedural Determinations

H. Minor Text Changes and Conforming Edits

IV. Section-by-Section Summaries of and Responses to Public Comments

A. 30 CFR 842.5

B. 30 CFR 842.11(b)(1)(i)

C. 30 CFR 842.11(b)(1)(ii)

D. 30 CFR 842.11(b)(2)

E. 30 CFR 842.12(a)

F. 30 CFR 733.5

G. 30 CFR 733.12(a)

H. 30 CFR 733.12(b)

I. 30 CFR 733.12(b)(1) Through (4)

J. 30 CFR 733.12(c)

K. 30 CFR 733.12(d)
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4

V. Severability of Provisions in this Final Rule

VI. Procedural Matters and Required Determinations

I. Background 

In addition to the explanations in this preamble, OSMRE directs the reader to the 

preamble for the proposed rule, 88 FR 24944 (April 25, 2023), because the Department is 

adopting the regulatory provisions as proposed with one exception.

A. Primary Provisions of SMCRA Supporting the Final Rule

Under SMCRA, each State that wishes to regulate surface coal mining and

reclamation operations on non-Federal and non-Indian lands within its borders can 

submit a proposed State regulatory program to the Secretary of the Interior. 30 U.S.C. 

1253(a). The Secretary, acting through OSMRE, reviews and approves or disapproves the 

proposed program. 30 U.S.C. 1211(c)(1), 1253(b). When the Secretary approves a State 

program, the State assumes exclusive jurisdiction or “primacy,” except as provided in

sections 521 and 523 and title IV of SMCRA. 30 U.S.C. 1253(a), 1271, 1273, and 1231–

1244. Under the exception at 30 U.S.C. 1271(a)(1), in a primacy State that has an 

approved State regulatory program, OSMRE retains oversight of the State program and 

some Federal enforcement authority. In this regard, SMCRA sometimes refers to a State

regulatory authority as having “primary” responsibility. See, e.g., 30 U.S.C. 1201(f) and 

1291(26) (defining “State regulatory authority’’ to mean ‘‘the department or agency in 

each State which has primary responsibility at the State level for administering

[SMCRA]”).

As explained in the preamble to the proposed rule, two provisions of SMCRA 

primarily govern OSMRE’s oversight and enforcement of State regulatory programs: 
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5

sections 521(a) and (b), 30 U.S.C. 1271(a) and (b). Section 521(a)(1) requires OSMRE to 

notify a State regulatory authority (SRA) when OSMRE has “reason to believe” that any 

person is in violation of any requirement of SMCRA, the approved regulatory program, 

an approved permit, or a required permit condition. That OSMRE notification of a 

possible violation is known as a ten-day notice (TDN) because the SRA must respond to 

OSMRE within ten days by either taking “appropriate action” to cause the possible 

violation to be corrected or showing “good cause” for not taking action. In general, if the 

SRA fails to respond within ten days or the response is arbitrary, capricious, or an abuse 

of discretion, OSMRE must immediately order a Federal inspection of the surface coal 

mining operation where the alleged violation is occurring and take appropriate 

enforcement action.

Section 521(b) of SMCRA describes the Secretary’s oversight and enforcement 

obligations when an SRA fails to effectively implement any part of its approved State 

program. The relevant existing regulations implementing section 521(b) of SMCRA are 

found at 30 CFR part 733 and are administered by OSMRE. The 2020 TDN Rule revised 

provisions in 30 CFR parts 733 and 842 to address State regulatory program issues before 

they rose to the level that would require OSMRE to take over administration of all or part 

of an approved State program under section 521(b). See 85 FR 75150 (Nov. 24, 2020). 

This final rule retains the basic structure of the 2020 TDN Rule but amends 30 CFR 

733.5 and 733.12 to comply more fully with SMCRA’s statutory requirements.

B. Key Regulatory Provisions of the Final Rule and their Purposes

i. Information Used for “Reason to Believe” Determinations
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In the 2020 TDN Rule, OSMRE modified the regulations at 30 CFR 

842.11(b)(1)(i) so that when OSMRE received a citizen complaint, OSMRE could 

consider “any information readily available [], from any source, including any 

information a citizen complainant or the relevant State regulatory authority submits” 

when determining whether OSMRE had reason to believe a violation existed. Existing 

§§ 842.11(b)(2) (TDN process) and 842.12(a) (requests for Federal inspections) contain 

similar “information readily available” and “readily available information” language. 

Providing for consideration of information from the SRA was an attempt to allow 

OSMRE to consider the latest, most accurate information when determining if it had 

reason to believe a violation existed. 

Since publishing the 2020 TDN Rule, OSMRE has observed instances in which

requesting and considering information from an SRA resulted in delay because the 

process extended the time periods for OSMRE to receive the information from the SRA. 

OSMRE generally interpreted the 2020 TDN Rule to require the consideration of all 

readily available information, including information that could be obtained from an SRA,

when determining whether OSMRE has reason to believe a violation exists. In some 

instances, it took up to 30 days for the SRA to send OSMRE information that OSMRE

could consider in determining if it had reason to believe a violation existed. This 

extended period is not consistent with the text or spirit of the statutory language. 

SMCRA’s “reason to believe” standard does not require that OSMRE determine whether

a violation actually exists; rather it only requires that OSMRE determine that a possible

violation could exist. 
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7

To that end, this final rule limits the sources of information that OSMRE will 

need to consider in determining whether it has reason to believe a possible violation 

exists. In this final rule, after careful review of the statutory language, OSMRE’s 

experience implementing the 2020 TDN Rule, and the public comments received on the 

proposed rule, OSMRE has removed the direction to consider “readily available 

information” and has, instead, in the final rule, as in the proposed rule, limited the scope

of information it will consider before determining whether it has reason to believe

“information received from a citizen complainant, information available in OSMRE files 

at the time that OSMRE is notified of the possible violation (other than information 

resulting from a previous Federal inspection), and publicly available electronic 

information.” § 842.11(b)(1)(i). OSMRE also made similar changes to final 

§§ 842.11(b)(2) and 842.12(a). With these sources of information, OSMRE believes it 

meets the text, intent, and spirit of SMCRA’s “reason to believe” standard while also

allowing OSMRE to consider enough information in a timely manner to firmly establish 

whether OSMRE has reason to believe a violation exists. Notably, this is not simply a 

reversion to the pre-2020 TDN regulations; this final rule also provides for OSMRE’s

consideration of “publicly available electronic information,” which often fills in any gaps 

in a citizen complaint, but with information that can be obtained in a more timely manner 

than waiting for a response from an SRA. Importantly, SMCRA’s legislative history 

indicates that Congress “anticipated that ‘reasonable belief’ could be established by a 

snapshot of an operation in violation or other simple and effective documentation of a 

violation.” H. Rept. No. 95-218, at 129 (April 22, 1977). This illustrates that in §

521(a)(1) of SMCRA, Congress intended that OSMRE could form “reason to believe”
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8

well short of proving an actual violation before issuing a TDN to an SRA. Thus, the 

simpler test for the “reason to believe” standard in this final rule is fully consistent with 

SMCRA and supported by its legislative history. In its response to a TDN, an SRA can 

include information that attempts to definitively disprove the existence of a violation; this 

approach is consistent with SMCRA for the stage at which OSMRE is determining 

whether a State has taken appropriate action or demonstrated good cause for not doing so 

in response to a TDN. 

ii. Types of Possible Violations

This final rule revises the 2020 TDN Rule with respect to what is considered a 

“violation” for TDN purposes. As in the proposed rule, the final rule treats all violations 

the same, regardless of their genesis (i.e., whether they result from an operator’s or 

permittee’s failure to conduct surface coal mining operations consistently with the 

approved State program, or whether they result from an SRA’s issuance of a permit that 

allows mining that would be inconsistent with the approved State program). As such, 

under 30 CFR 842.11, OSMRE will issue a TDN for any possible violation after forming 

reason to believe a violation exists. 

OSMRE considered language in existing 30 CFR 733.12(d) that allowed OSMRE 

to issue a TDN for a previously identified State regulatory program issue that results in or 

may imminently result in a violation of the approved State program. In this final rule, 

however, as in the proposed rule, OSMRE modifies § 733.12(d) such that OSMRE will 

not wait for evidence of an imminent or actual on the-ground violation before issuing a 

TDN. It makes little sense to wait for mining to occur under a defective permit or a 

violation to occur on-the-ground before issuing a TDN for an inconsistency with the 
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

9

approved permit, approved State program, or SMCRA. It will no longer be the case that a 

possible violation could bypass 30 CFR part 842 and proceed initially as a State 

regulatory program issue under 30 CFR part 733. Instead, under this final rule, all 

possible violations, excluding imminent harm situations, will initially be considered 

under part 842.

In the preamble to the proposed rule, OSMRE used the example of issuing a TDN 

for failure to submit a required certification or monitoring report. This type of violation is 

not “on-the-ground,” but OSMRE may nonetheless issue a TDN in such instances. As 

first described in the preamble to the proposed rule and now reflected in the final rule,

OSMRE will issue TDNs for all violations, including those committed by a permittee or 

those that result from an SRA issuing a defective permit (i.e., a permit that is not in 

compliance with the approved State program or that would allow a permittee to mine in a 

manner that is not authorized by the State program). As stated in the preamble to the 

proposed rule, the term “permit defect” is not in the statute or regulations, and it has 

never been officially defined. OSMRE has used the phrase in internal guidance 

documents through the years and considers a permit defect to be a deficiency in a permitrelated action taken by an SRA, such as when an SRA has issued a permit with a 

provision that is contrary to the approved State program or that, as explained above, 

would allow mining that is not authorized by the State program. After careful review and 

consideration of the public comments received on the proposed rule, OSMRE concludes 

that this change to apply the TDN process to all violations, including permit defects,

more closely adheres to SMCRA’s language in 30 U.S.C. 1271(a)(1) by treating all 

violations the same and preventing the perception that there are two classes of violations: 
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that may be relied upon.

10

one that is subject to the TDN process and one that is not. Instead, all possible violations, 

except those that create an imminent harm, will start under 30 CFR part 842 whenever

OSMRE has reason to believe that a violation exists. Under this final rule, upon forming 

reason to believe that a violation exists, OSMRE will generally issue a TDN for all 

possible violations, including permit defects.

iii. State Regulatory Authorities as “Any Person” for TDN Purposes

The issue of who can be in violation of SMCRA or a State program for TDN 

purposes is related to the issue of permit defects. As OSMRE noted in the preamble to the 

proposed rule (88 FR at 24949): “In the preamble to the 2020 TDN Rule, [OSMRE]

explained that, under 30 U.S.C. 1271(a)(1), ‘any person’ who can be in violation of 

SMCRA or a State regulatory program ‘does not include a State regulatory authority, 

unless it is acting as a permit holder. 85 FR 75176; see also id. at 75179.’” After 

OSMRE’s review of SMCRA, Congressional intent, and implementation experience 

through the years on this issue, OSMRE concludes that OSMRE must issue a TDN when 

it has reason to believe that any person, including an SRA, violates the approved State 

program, approved permit, or SMCRA. OSMRE will accept a State’s response to the 

TDN unless OSMRE concludes that the action or response is arbitrary, capricious, or an 

abuse of discretion. 30 CFR 842.11(b)(1)(ii)(B)(2). 

iv. Definitions

As in the proposed rule, the final rule adopts, for the first time, regulatory 

definitions of “ten-day notice” and “citizen complaint.” OSMRE decided to define “tenday notice” because these notices are fundamental to the overall ten-day notice process 

that is addressed in this final rule. OSMRE has frequently used the term “ten-day notice”
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11

in its implementing regulations and directives but has never defined the term until now. 

The concept derives from SMCRA section 521(a)(1), which provides that, after OSMRE 

notifies an SRA of a possible violation, the State must take “appropriate action” or show 

“good cause” for not doing so “within ten days.” This final rule creates a new section, 30 

CFR 842.5, which defines “ten-day notice” as “a communication mechanism that 

OSMRE uses, in non-imminent harm situations, to notify a State regulatory authority

under §§ 842.11(b)(l)(ii)(B)(1) and 843.12(a)(2) when an OSMRE authorized 

representative has reason to believe that any permittee and/or operator is in violation . . . 

.” Importantly, as the definition notes, a ten-day notice is a “communication mechanism” 

between OSMRE and an SRA about a possible violation. Issuance of a TDN, therefore, 

provides the State with the first opportunity to review and address the possible violation, 

as necessary, under its approved State program.

SMCRA section 521(a)(1) provides citizens with the right to participate in the 

SMCRA enforcement process. This right often takes the form of a citizen filing a 

complaint to OSMRE or the SRA concerning a possible violation. These communications 

are often questions, formal and informal complaints, or general inquiries about particular

surface coal mining and reclamation operations. At times, it has been difficult to ascertain 

the exact nature of these communications. Consistent with the proposed rule, the final 

rule defines “citizen complaint” at 30 CFR 842.5 to provide clarity and indicate that the 

purpose of a citizen complaint, in the TDN context, is for citizens to inform OSMRE of a 

possible violation. The definition of “citizen complaint” in this final rule is “any 

information received from any person notifying the Office of Surface Mining 

Reclamation and Enforcement (OSMRE) of a possible violation of the Act, this chapter, 
This is an unofficial prepublication version of this document. OSMRE expects that 

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The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

12

the applicable State regulatory program, or any condition of a permit or an exploration 

approval.” The definition also provides that the information “must be provided in writing 

(or orally, followed up in writing).” Defining the phrase “citizen complaint” provides 

clarity for the meaning of the phrase and related processes. 

v. Time Frames

In this final rule, OSMRE adopts the time frames that it proposed to ensure 

quicker resolution of outstanding issues. SMCRA section 521(a)(1) requires the SRA to 

respond within ten days to an OSMRE notification of a possible violation, indicating 

either that it has taken appropriate action to cause a possible violation to be corrected or 

that it has good cause for not acting. 30 U.S.C. 1271(a)(1); 30 CFR 842.11(b)(1)(ii)(B). 

Responding within ten days does not require the possible violation to be fully resolved 

but does require the SRA to indicate its intended actions to resolve a possible violation. 

As described in the proposed rule and below, the final rule incorporates several additional

time frames in both the TDN process and development of a 30 CFR part 733 corrective 

action plan to reduce the time between the identification of a violation or State regulatory 

program issue and final resolution of the identified issue. 

a. State Regulatory Program Issues

The 2020 TDN Rule contained no definitive time frames to address a State 

regulatory program issue, except that, if OSMRE believed the issue would take longer 

than 180 days to resolve, an action plan would be developed. 30 CFR 733.12(b). There 

were no interim action items or timelines, no maximum amount of time for an action plan 

to be completed, and no defined time frames for development of an action plan. Existing 

§ 733.12(b) provided only that OSMRE “may employ any number of compliance 
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that may be relied upon.

13

strategies to ensure that the State regulatory authority corrects a State regulatory program 

issue in a timely and effective manner.” Id. Under this framework, a State regulatory 

program issue could potentially exist for a long period of time between identification of 

the issue and final resolution. 

This final rule amends existing 30 CFR 842.11 and 733.12 to address the 

possibility of delays in resolving State regulatory program issues. To accomplish this 

objective, under amended 30 CFR 842.11(b)(1)(ii)(B)(3), corrective actions developed 

under 30 CFR part 733 can no longer constitute appropriate action in response to a TDN. 

However, under this final rule, addressing a possible violation, along with substantially 

similar possible violations, under a part 733 action plan can constitute “good cause” for 

not acting.

This final rule also removes the 180-day language from 30 CFR 733.12(b) that 

would trigger development of an action plan. In the final rule, for each State regulatory 

program issue, § 733.12(b) indicates that OSMRE, “in consultation with the State 

regulatory authority, will develop and approve an action plan within 60 days of 

identification of a State regulatory program issue.” The fact that development of an action 

plan is intended to be a cooperative process between OSMRE and the SRA is also 

inherent in final § 733.12(b)(4). However, as that section indicates, “[i]f the State 

regulatory authority does not cooperate with OSMRE in developing the action plan, 

OSMRE will develop the action plan . . . and require the State regulatory authority to 

comply with [it].”

The 2020 TDN Rule, at existing § 733.12(b), did not require interim measures 

between identification of the State regulatory program issue and implementation of a 
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14

corrective action plan. The existing regulations simply implied that measures would be 

developed, noting that OSMRE “may employ any number of compliance strategies to 

ensure that the State regulatory authority corrects a State regulatory program issue in a 

timely and effective manner.” Id. OSMRE concluded that this language could allow a 

violation to exist for extended periods of time before or during the time in which an 

action plan was developed and the issue resolved. In final § 733.12(b), OSMRE adds a 

provision, which it included in the proposed rule, to allow interim remedial measures to 

be developed. The final provision provides: “Within 10 business days of OSMRE’s 

determination that a State regulatory program issue exists, OSMRE and the State 

regulatory authority may identify interim remedial measures that may abate the existing 

condition or issue.”

Section 733.12(b)(1) of the final rule allocates 365 days (one calendar year) for 

the SRA to complete all identified actions in an action plan. The one year starts on the 

date on which OSMRE sends the action plan to the SRA. As stated in the preamble to the 

proposed rule, OSMRE recognizes that final resolution of an issue could exceed one year. 

88 FR at 24950. This is particularly true for actions involving multiple parties and/or 

agencies, State legislative actions, or any requirements imposed by court decisions. 

OSMRE reiterates that care must be exercised in development of the action plan to ensure 

that the identified corrective actions can be accomplished within one calendar year. The 

associated completion criteria must have actions and milestones that are achievable 

within one calendar year. The goal is to keep violations from going unabated, minimize 

on-the-ground impacts, and prevent off-site impacts. For example, if a State regulatory 

program issue requires a State program amendment, it is often not possible for a program 
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15

amendment to be approved within one calendar year. A more reasonable action plan 

objective may be to submit to OSMRE a program amendment within one year. 

b. Good Cause for Not Taking Action

The existing regulations at 30 CFR 842.11(b)(1)(ii)(B)(4)(ii) indicated that “good 

cause” for an SRA not taking “appropriate action” in response to a TDN includes the 

State’s initiation of “an investigation into a possible violation” and its resulting 

determination that it “requires a reasonable, specified additional amount of time to 

determine whether a violation exists.” This language had the potential to allow violations 

to remain unabated for an open-ended amount of time. As in the proposed rule, the final 

rule modifies this provision by specifying the time within which the SRA must complete 

its investigation. The final rule provides that “[t]he State regulatory authority may request 

up to 30 additional days to complete its investigation of the issue” and that, “in complex 

situations, the State regulatory authority may request up to an additional 60 days to 

complete the investigation.” The final rule caps the maximum amount of time at 90 

additional days from when the SRA has satisfied the criteria for good cause for not taking 

action. Under OSMRE’s normal practice, when an SRA requests additional time under 

this provision, the length of any OSMRE approved additional time will be measured from 

when OSMRE notifies the SRA that OSMRE has approved an extension. The final rule 

also requires a reasoned justification for an extended time frame to identify whether a 

violation exists as indicated in a TDN. As stated in the final rule provision, “[i]n all 

circumstances, an extension request must be supported by an explanation of the need for, 

and the measures being undertaken that justify, an extension, along with any relevant 

documentation.” OSMRE retains discretion to approve the requested time extension or 
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16

establish the length of time, up to 90 additional days, that the SRA has to complete its 

investigation. These changes are intended to facilitate expedited resolutions of identified 

issues.

vi. Contacting the SRA before OSMRE

The 2020 TDN Rule, at 30 CFR 842.12(a) of the existing regulations, required

citizens, when requesting a Federal inspection, to provide a statement, including, among 

other things, the fact that the person has notified the SRA of the existence of the possible 

violation. OSMRE carefully reviewed the statutory language and Congressional record 

preceding SMCRA’s enactment and determined that no requirement exists for citizens to 

contact the SRA before contacting OSMRE about a possible violation. This concept first 

appeared in the preamble to the Permanent Regulatory Program regulations (44 FR 15299

(August 27, 1979)) and was discussed in the comments section of that preamble. There 

OSMRE concluded that it “has no authority under [SMCRA] to require a citizen to ask 

for a State inspection before asking for a Federal inspection.” Id. A few years later, in the 

preamble to a final rule entitled, “Permanent Regulatory Program Modifications; 

Inspections and Enforcement; Civil Penalty Assessments” (47 FR 35620 (Aug. 16, 

1982)), OSMRE took the position that citizens must “notify the State regulatory authority

in writing prior to, or simultaneously with, his or her request to OSM[RE]” (id. at 35628), 

even though OSMRE had previously acknowledged that this is not a statutory 

requirement (44 FR 15299). Even under that rule, however, “the person [was] not 

required to wait for any action to be taken by the State regulatory authority before 

requesting a Federal inspection.” 47 FR at 35628. The State notification requirement was 

incorporated into section 842.12(a) of the 1982 rule as a measure to allow the SRA the 
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

17

first chance to address an issue identified by a citizen. However, OSMRE is aware of 

instances where citizens were hesitant to contact the SRA. Based on the foregoing, in this 

final rule, as in the proposed rule, OSMRE removed the language in existing section 

842.12(a) requiring a citizen to first contact an SRA before they contact OSMRE to 

report the same possible violation. 

vii. Citizen Justification for Possible Violation 

As in the proposed rule, OSMRE is removing the existing requirement in section 

842.12(a) that a citizen must state the basis for their allegation of a possible violation. 

After careful consideration of the statute, OSMRE’s implementation experience, the 

regulatory language, and the public comments on the proposed rule, this final rule 

removes the requirement that a citizen must state the “basis for the person’s assertion that 

the State regulatory authority has not taken action with respect to the possible violation.”

Citizens are not necessarily well-versed on the text of SMCRA or its implementing 

regulations; therefore, they should not need to state their allegation in statutory or 

regulatory language. Conversely, OSMRE and the SRAs are experts in interpreting and 

implementing SMCRA and are, therefore, best suited to determine if a violation is or is 

not occurring under the applicable statutory and regulatory provisions. As OSMRE stated 

in the preamble to the proposed rule, OSMRE continues to believe that if a citizen first 

contacts the SRA, most possible violations will be resolved without the need for OSMRE 

to issue a TDN. Therefore, although a citizen is not required to contact the SRA about a 

possible violation before contacting OSMRE, OSMRE continues to strongly encourage 

citizens to do so because the SRA should be more acquainted with conditions on the 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

18

ground for permits that it has issued and is typically in the best position to quickly 

determine and, if necessary, act on the merits of a citizen complaint. 

viii. Citizen Complaints as Requests for Federal Inspections

To better align §§ 842.11(b)(1)(i) and 842.12(a), which both allow citizens to 

provide information to OSMRE concerning possible violations, the final rule makes both 

sections consistent with respect to a Federal inspection resulting from information 

received from a citizen complainant. This revision will reduce a real or perceived barrier 

to our public participation procedures because, even if a citizen complaint does not 

specifically request a Federal inspection, the TDN process could ultimately result in a 

Federal inspection if an SRA does not respond to the TDN or OSMRE determines that 

the SRA’s response is arbitrary, capricious, or an abuse of discretion. As in the proposed 

rule, the final rule includes language in both §§ 842.11(b)(2) and 842.12(a) stating that all 

citizen complaints will be considered as requests for a Federal inspection. As stated in the 

proposed rule, the final rule provides that, if a Federal inspection occurs because of any 

information received from a citizen complainant, the citizen will be afforded the 

opportunity to accompany the Federal inspector on the inspection.

ix. Action Plans as Appropriate Action

As in the proposed rule, this final rule modifies the existing regulations by

removing 30 CFR part 733 corrective actions associated with a State regulatory program 

issue as a possible “appropriate action” in response to a TDN. 30 CFR 

842.11(b)(1)(ii)(B)(3). This rule excludes identification of a State regulatory program 

issue as a possible appropriate action in response to a TDN because, as stated in the 

preamble to the proposed rule, action plans do not themselves remedy violations. After 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

19

careful review, while OSMRE will no longer consider an action plan to address a State 

regulatory program issue to be “appropriate action” in response to a TDN, OSMRE

concluded that identifying and addressing a 30 CFR part 733 State regulatory program 

issue can, in certain circumstances, constitute good cause for not taking action within ten

days in response to a TDN under 30 CFR 842.11(b)(1)(ii)(B)(4). Addressing a part 733

State regulatory program issue and associated action plan demonstrates that the SRA will 

take actions to abate a violation, even though an action plan likely will not be developed 

and completed within the ten days allotted for responding to a TDN. The SRA must 

adhere to the timelines provided for in final 30 CFR 733.12(b) related to action plans. 

x. Similar Possible Violations

This final rule also amends § 842.11(b)(1)(ii)(B)(1) to reduce the burden on SRAs 

and OSMRE. This is accomplished by allowing OSMRE to issue a single TDN for 

substantively similar possible violations. The final rule reads: “Where appropriate, 

OSMRE may issue a single ten-day notice for substantively similar possible violations 

found on two or more permits, including two or more substantively similar possible 

violations identified in one or more citizen complaints.” As discussed in more detail in 

section II of this preamble, OSMRE is removing the words “involving a single permittee” 

after “two or more permits,” which represents a change from the proposed rule language. 

Additionally, as mentioned above, this final rule amends 

§ 842.11(b)(1)(ii)(B)(4)(iii) so that good cause in response to a TDN includes situations 

in which “OSMRE has identified substantively similar possible violations on separate 

permits and considers the possible violations as a single State regulatory program issue . . 

. .” As stated in the preamble to the proposed rule, the phrase “substantively similar 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

20

possible violations” is meant to indicate issues or possible violations that have a common 

basis or theme; that are similar, or even identical, in nature; and that are subject to the 

same statutory or regulatory provisions. 88 FR at 24951. Issuing separate and distinct 

TDNs for substantively similar possible violations would be redundant and not an 

efficient use of OSMRE or State resources when the underlying issue can be more 

efficiently addressed through a single TDN or State regulatory program issue and 

associated corrective action plan for a group of similar possible violations. This is 

discussed further in section II of this preamble. OSMRE believes that the presence of 

similar or identical violations on several approved permits may indicate a systemic issue 

with implementation of an SRA’s program and that combining substantively similar 

violations into a single State regulatory program issue and addressing the similar 

violations through implementation of an action plan is an efficient means of addressing 

the underlying issue. Treating these possible violations as an overarching State regulatory 

program issue will allow an SRA and OSMRE to focus on the larger context and make 

sure that the underlying issue is efficiently resolved and properly addressed going 

forward.

As mentioned above, final section 842.11(b)(1)(ii)(B)(4)(iii) also provides that 

“good cause” includes when “OSMRE has identified substantively similar possible 

violations on separate permits and considers the possible violations as a single State 

regulatory program issue addressed through § 733.12.” It is appropriate to consider a 

State regulatory program issue and associated action plan as “good cause” because proper 

completion of the action plan will resolve the underlying issue. After reconsidering the 

2020 TDN Rule, the existing regulations, and comments on the proposed rule, OSMRE 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

21

determined that an action plan is not “appropriate action” because creation of the action 

plan itself does not resolve or correct the underlying issue. Instead, as its name suggests, 

it is only a “plan” to correct the underlying issue. 

The changes in this final rule enhance efficiency and effectiveness of the TDN 

process, while honoring State primacy, and they more closely adhere to the language,

spirit, and intent of SMCRA’s statutory requirements. OSMRE will continue to honor 

State primacy and perform its statutorily mandated oversight to ensure adequate SMCRA 

implementation in the primacy States. In addition, OSMRE will continue to work with 

citizens to ensure that their voices are heard and that their legitimate concerns are 

properly addressed as SMCRA intended. In summary, this final rule eases burdens on 

citizens filing complaints, makes the TDN process more effective and efficient, and 

provides more structure to the identification of State regulatory program issues and 

associated action plan processes. As such, the final rule reduces burdens on both OSMRE 

and SRAs and increases the overall effectiveness of the SMCRA programs.

II. Summary of Changes from the Proposed Rule

As mentioned in section I.B.x of this preamble, in this final rule, OSMRE made 

only one change from the proposed regulatory provisions. OSMRE removed the phrase 

“involving a single permittee” after “two or more permits” from the proposed revisions at 

30 CFR 842.11(b)(1)(ii)(B)(1). All other provisions that OSMRE included in the 

proposed rule are reflected in this final rule. The final rule language enables OSMRE to 

incorporate substantively similar violations into a single TDN without writing a separate 

TDN for each permittee. This will allow OSMRE to group the possible violations 

together, which will alert the SRA that the identified permits have possible violations 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

22

involving a substantively similar issue and relieve OSMRE of having to write numerous 

TDNs for each identified permittee. Without this approach, an SRA could receive 

multiple TDNs for substantively similar issues, which would take undue time and effort 

for the SRA to evaluate before identifying the commonality.

III. General Public Comments and Responses 

OSMRE published the proposed rule on April 25, 2023 (88 FR 24944), soliciting 

public comments for 60 days. During the comment period, OSMRE received over 5,000 

sets of comments from members of the public, State governments, trade associations, 

environmental advocacy groups, and private companies. Each public comment was 

considered in the development of the final rule. Many comments were supportive of the 

proposed rule, with some expressing support for reverting the regulations to the pre-2020 

rule, which provided for looking only at the allegations of the citizen complaint before 

issuing a TDN. OSMRE also received comments that were critical of the proposed rule. 

Some of these comments expressed concern about revising these regulatory provisions so 

soon after the 2020 TDN Rule became effective and alleged that the proposed rule would 

infringe on State primacy.

Comments received that are similar in nature have been categorized by subject and, in 

some instances, have been combined with related comments.

A. Rule Basis and Justification

Comment: Some commenters asserted that the proposed rule conflicts with various 

provisions of SMCRA, especially as it pertains to the roles and responsibilities of SRAs 

and OSMRE in primacy states, such as 30 U.S.C. 1201(f), 1253, and 1271. These 

comments suggested that the proposed rule should be withdrawn.
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

23

Response: As discussed more fully in the preamble of the proposed rule at 88 FR at 

24947-24948 and throughout this preamble, this rule is fully consistent with the text, 

legislative history, and purposes of SMCRA. OSMRE reviewed SMCRA and its 

legislative history and found no discrepancy between the statute and the revisions to the 

regulations that OSMRE is finalizing in this rule. As the commenters stated, over the 

years, several court opinions and the Department have discussed SMCRA’s cooperative 

federalism structure. In this rule, OSMRE is committed to ensuring that SRA’s maintain 

their “exclusive jurisdiction over the regulation of surface coal mining and reclamation 

operations, except as provided in [30 U.S.C. 1271 and 1273].” 30 U.S.C. 1253(a) 

(emphasis added). The TDN process, which is the focus of this rule, is set forth in 30 

U.S.C. 1271(a) and is part of OSMRE’s oversight and enforcement role. Because 

SMCRA specifically exempts the TDN process from a State’s exclusive jurisdiction, this 

rule is not inconsistent with SMCRA or any binding legal precedent on this topic. 

Comment: One commenter asserted that the proposed rule fails to acknowledge the 

1988 TDN rule and the decades of regulatory policy established by that rule, such as the 

limited Federal role in primacy States and the handling of disagreements between 

OSMRE and SRAs.

Response: One of the policies established by the 1988 TDN Rule (53 FR 26728) was 

a uniform standard by which OSMRE would evaluate State responses to a TDN. The 

1988 preamble states that “OSMRE will accept a state regulatory authority’s response to 

such a notice, called a ten-day notice, as constituting appropriate action to cause a 

possible violation to be corrected or showing good cause for failure to act unless OSMRE 

makes a written determination that the state’s response was arbitrary, capricious, or an 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

24

abuse of discretion under the state program.” 53 FR at 26728. The 1988 rule clearly 

delineated the roles of the State and OSMRE with respect to SMCRA implementation 

once a State acquires primacy. In the same preamble, OSMRE also stated: “In primacy 

states, a mine operator’s compliance is measured against the approved state program, 

rather than directly against the Act. As the court explained in In re: Permanent Surface 

Mining Regulation Litigation (In re: PSMRL), ‘it is with an approved state law and with 

state regulations consistent with the Secretary’s that surface mine operators must 

comply.’ 653 F.2d at 519.” With respect to OSMRE’s role, OSMRE stated: 

Once a state has been granted primacy, the federal role becomes one of 

oversight. As described by the U.S. Court of Appeals, “[t]he Secretary is 

initially to decide whether the proposed state program is capable of 

carrying out the provisions of the Act, but is not directly involved in local 

decisionmaking after the program has been approved.” In re: Permanent 

Surface Mining Regulation Litigation, 653 F.2d 514, 518 (D.C. Cir., 

1981). The court further stated that “[o]nce a state program has been 

approved, the state regulatory agency plays the major role, with its greater 

manpower and familiarity with local conditions. It exercises front-line 

supervision, and the Secretary will not intervene unless its discretion is 

abused.” Id. at 523. 

53 FR at 26729. 

This final rule is consistent with the legal authorities that OSMRE cited in support of 

the 1988 rule. Nothing in this final rule changes OSMRE’s long-standing position not to 

intervene in a State’s SMCRA implementation unless a State is not properly 

implementing its SMCRA program as approved. Likewise, OSMRE will continue not to

intervene in a State’s enforcement actions unless the State acts inconsistently with an 

approved State program. Nothing in this final rule is inconsistent with these longstanding principles. 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

25

Comment: Some commenters stated that the rule lacks any concrete justification or

the legal or factual explanation for changing the 2020 TDN Rule. 

Response: OSMRE disagrees. In the preambles to both the proposed and final rules, 

OSMRE has demonstrated sufficient legal and factual reasons for the revisions. This

demonstration includes a closer adherence to SMCRA’s statutory requirements, which 

OSMRE discussed in detail in the preamble to the proposed rule. Additionally, OSMRE

observed instances while implementing the 2020 TDN Rule, as discussed in section I.B

of this preamble, where the TDN process was delayed as OSMRE sought and considered 

information from SRAs before issuing a TDN or otherwise disposing of the citizen 

complaint.

Comment: Some commenters asserted that OSMRE did not have sufficient 

experience (at most one year) implementing the 2020 TDN Rule to support the rule 

changes. The commenters requested examples, data, and facts to justify the rule, 

including specifically how the 2020 TDN Rule compromised public protections, created 

delays for OSMRE’s consideration of some possible violations, caused communication 

breakdown between OSMRE and SRAs, and created burdens by having the complainant 

notify the SRA simultaneously with or before notifying OSMRE of any potential 

violations. These commenters also asked for identification of any material delays 

discussed in post-2020 OSMRE reports, including State Oversight Reports, OSMRE 

Annual Reports, and budget justifications.

Response: OSMRE has an independent duty to enforce SMCRA in order to “assure 

appropriate procedures are provided for public participation in . . . the programs 

established by the Secretary or any State under this Act....” 30 U.S.C. 1202(i), 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

26

1211(c)(2). Since the 2020 TDN Rule’s promulgation, citizen groups have raised legal 

and practical issues about it with OSMRE, specifically about actual and perceived 

barriers to filing citizen complaints, the length of time it takes for OSMRE to issue 

TDNs, and the overall time it takes for possible violations to be addressed under the 2020 

TDN Rule. Regardless of the time that the 2020 TDN Rule has been in effect, OSMRE 

has an obligation to seriously consider whether it caused delays or other unintended 

effects and was the best interpretation of SMCRA.

Notably, the commenters do not identify any specific data that is needed to 

understand the justification for the rule but instead suggest, for example, that OSMRE 

should have sought data from the States to support this rule. OSMRE did not request any 

specific data from SRAs because OSMRE already had all of the information it needed to 

review the amount of time it took under the 2020 TDN Rule to issue a TDN or otherwise 

address a citizen complaint. OSMRE has been monitoring implementation of the 2020 

TDN Rule from the outset and has observed that there is often a lag time of a month or 

more between the time OSMRE receives a citizen complaint and when a TDN is issued

or the citizen complaint is otherwise resolved. Moreover, one commenter noted that it 

was aware of an instance where it took OSMRE almost 60 days to issue a TDN after 

receiving a citizen complaint. OSMRE notes there have been additional instances when 

there have been several month lags between the time OSMRE receives a citizen 

complaint and the time it notifies the citizen complainant that it does not have reason to 

believe a violation exists. OSMRE believes the 2020 TDN Rule would have continued to 

lead to enforcement delays. The documented instances of delay demonstrate how the 

2020 TDN Rule is contrary to the immediate process set forth in 30 U.S.C. 1271(a). To 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

27

address this issue, this final rule eliminates the 2020 TDN Rule’s potential for an openended, information gathering process – including obtaining information from an SRA –

before OSMRE determines whether it has reason to believe a violation exists.

Comment: One commenter asserted the proposed rule was generated by OSMRE 

Headquarters staff without meaningful consultation with OSMRE’s regional or field 

office staff.

Response: This comment is not accurate. OSMRE field staff, along with 

Headquarters staff, participated in the rule development team since its inception. OSMRE 

developed this rule with proper input from qualified staff. 

B. Burden Reduction and Duplication of Work

Comment: One commenter agreed with OSMRE that citizens are burdened by the 

existing TDN process and supported reverting to the pre-2020 rule process.

Response: OSMRE appreciates this comment. This final rule will reduce burdens on 

citizens to file citizen complaints and otherwise bring concerns to OSMRE’s attention.

To arrive at this final rule, OSMRE reviewed the statutory and regulatory language as 

well as implementation of the citizen complaint and TDN processes through the years 

and incorporated changes that ease the burden on citizens to notify OSMRE of a possible 

violation.

Comment: Some commenters asserted that the proposed changes to the 2020 TDN 

Rule would create additional burdens, promote duplication of resources, increase costs, 

and decrease productivity for SRAs and subvert their jurisdiction.

Response: OSMRE does not agree with these commenters’ assertions. While this 

final rule reduces burdens on citizen complainants and the time it takes to resolve 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

28

possible violations, it will not simultaneously increase SRA workloads in an appreciable 

manner and will not lead to duplication of inspections and enforcement efforts between 

OSMRE and SRAs. As has been the case for many years, after OSMRE issues a TDN to 

an SRA, the SRA has the first opportunity to address or explain the underlying issue. 

OSMRE will not second guess an SRA’s response to a TDN unless it is arbitrary, 

capricious, or an abuse of discretion. As this rule is consistent with 30 U.S.C. 1271(a), 

there is nothing in this rule that infringes upon or subverts an SRA’s jurisdiction, 

obligations, or implementation of its approved State program. 

In addition, as specified in § 842.11(b)(1)(i) of the final rule, before issuing a TDN, 

OSMRE will review only “information received from a citizen complainant, information 

available in OSMRE files at the time that OSMRE is notified of the possible violation . . . 

, and publicly available electronic information” and not information from a State when it 

decides if it has reason to believe a violation exists. As a result, under the final rule, a 

State need not expend the time and effort to provide OSMRE with a response at the 

reason-to-believe stage and then again if OSMRE ultimately sends a TDN to a State. This 

rule ensures that States need only respond to OSMRE about a citizen complaint once—in 

response to a TDN, if OSMRE determines that it has reason to believe a violation exists.

Therefore, OSMRE believes this final rule will not increase the burdens on SRAs and 

may eliminate duplicative responses from the SRAs.

Comment: One commenter noted that, according to OSMRE, one of the “[t]he 

primary goals of this rulemaking [is] to reduce burdens for citizens to engage in the TDN 

process.” However, according to this commenter, there is no statutory directive for 

citizens to participate in the TDN process.
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

29

Response: OSMRE disagrees with the tenor of this comment. Section 521 of SMCRA 

serves as the statutory underpinning for the TDN process. It provides that OSMRE can 

receive information, in writing, from “any person” about a possible SMCRA violation. 30 

U.S.C. § 1271(a)(1). However, that provision does not exist in a vacuum; 30 U.S.C. 

1267(h)(1) provides that “any person who is or may be adversely affected by a surface 

mining operation” may contact OSMRE about “any violation of this Act which he has 

reason to believe exists at the surface mining site.” These two provisions operate together 

so that the receipt of information from a citizen under 30 U.S.C. 1267(h)(1) is one way 

that the TDN process may be initiated. 

As the House of Representatives explained in a report preceding SMCRA’s 

enactment, citizens play an important role in the enforcement of SMCRA and approved 

State programs. The House report states: 

The success or failure of a national coal surface mining regulation 

program will depend, to a significant extent, on the role played by citizens 

in the regulatory process. * * * Thus in imposing several provisions

which contemplate active citizen involvement, the committee is carrying 

out its conviction that the participation of private citizens is a vital factor 

in the regulatory program as established by the act.

H. Rept. No. 95-218, at 88-89 (April 22, 1977); see also S. Rept. No. 95-128, at 59 (May 

10, 1977). This idea is codified in the purposes of SMCRA at section 102(i) and various 

statutory sections including section 521(a)(1) of SMCRA, which provides that the TDN 

process can be initiated upon “receipt of information from any person.” 30 U.S.C. 

§ 1271(a)(1). One of the primary ways that citizens provide such information to OSMRE 

is through formal and informal citizen complaints about possible violations. This final 

rule assures that citizens can easily file citizen complaints with OSMRE about possible 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

30

violations and play their important role in the implementation and enforcement of 

SMCRA and approved State programs.

C. Consultation with States Before and During This Rulemaking

Comment: Some commenters asserted that OSMRE did not engage with SRAs in the 

development of the rule as should be expected with cooperative federalism; accordingly, 

the commenters urged OSMRE to abandon the rulemaking.

Response: OSMRE disagrees. In drafting this rule, OSMRE followed all legal 

requirements by seeking feedback from SRAs and other stakeholders through the notice 

and comment process described in the Administrative Procedure Act. 

D. State Primacy 

Comment: One commenter stated that the proposed rule attempts to “federalize” 

issues with State permits because, according to the commenter, any disagreement 

between OSMRE and an SRA over a State permitting decision could be subject to a 

Federal TDN and potentially other Federal enforcement actions instead of resting solely 

with the SRA, and OSMRE taking oversight action, if necessary, under 30 CFR 733.13 to 

substitute Federal enforcement of State programs or withdraw approval of the State 

program. In addition, this commenter opines that this interpretation transgresses the 

careful and deliberate statutory allocation of regulatory jurisdiction, violates the specific 

statutory procedures and deadlines for appealing State permits, and violates the exclusive 

avenue for administrative and judicial review of all State regulatory program decisions.

As support for its position, the commenter cites court decisions, a 2005 letter decision by 

the Department’s Assistant Secretary for Land and Minerals Management (ASLM) 
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

31

(which was attached to the comments), a Departmental 2007 rule preamble, and an 

OSMRE Director’s 2010 memorandum decision.

Response: OSMRE disagrees with this comment. OSMRE has reviewed the 

documents cited by the commenter and has determined that nothing in this final rule 

conflicts with SMCRA or relevant case law. While the Department has articulated

different positions related to the issuance of TDNs for permitting issues, OSMRE 

concludes that the positions it takes in this final rule best comport with SMCRA section 

521(a)(1).

The 2005 ASLM letter decision rejected an environmental group’s request for 

OSMRE to conduct a Federal inspection of a mine that an SRA had recently permitted. 

The letter described the request as asking “OSM to review the permit decision of [the 

SRA] with which you disagree” and concluded that “[a] request for inspection under 

section 517(h)(1) [of SMCRA] is not an alternative avenue for seeking review of the 

regulatory authority’s decision to issue a permit.” The letter also explained that the 

request did not provide “any basis to conclude that a violation exists at the mine site.” In 

addition, the letter referenced the SRA’s “exclusive jurisdiction” under SMCRA and 

cited several judicial decisions in support of that proposition: Bragg v. West Virginia 

Coal Ass’n, 248 F.3d 275, 293-94 (4th Cir. 2001), Pa. Fed’n of Sportsmen’s Clubs, Inc. 

v. Hess, 297 F.3d 310, 318 (3rd Cir. 2002), Haydo v. Amerikohl Mining Inc., 830 F.2d 

494, 497 (3rd Cir. 1987), and In re: PSMRL, 653 F.2d at 519. This commenter also cited 

these and other cases in support of its position.

A close examination of the cases cited in the 2005 ASLM letter decision reveals that 

they do not address whether OSMRE has oversight and enforcement authority over State 
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

32

permitting decisions under section 521(a) of SMCRA and OSMRE’s implementing 

regulations. In fact, Bragg and Pa. Fed’n of Sportsmen’s Clubs expressly recognize that, 

despite the asserted exclusivity of a primacy State’s jurisdiction, OSMRE retains 

oversight authority in primacy States. See Bragg, 248 F.3d at 289, 294 (primacy State’s 

“exclusive jurisdiction” subject to Federal oversight and enforcement under section 521 

of SMCRA); Pa. Fed’n of Sportsmen’s Clubs, 297 F.3d at 317, 325, 328 (OSMRE’s 

“oversight jurisdiction” under 30 C.F.R. § 843.12(a)(2) includes inspection of specific 

mines and issuance of notices of violation to State permittees pursuant to the TDN 

process). Therefore, the position taken in the 2005 letter decision goes beyond the 

holdings of the cited cases.

Moreover, the 2010 OSMRE Director’s guidance (with which the Office of the 

ASLM officially concurred) analyzed and rejected the rationale set forth in the 2005 

ASLM letter. The 2010 Director’s guidance “reaffirm[ed] OSM’s historic position on this 

issue” and “clarifie[d] that OSM’s TDN and pertinent Federal enforcement regulations at 

30 CFR Parts 842 and 843 apply to all types of violations, including violations of 

performance standards or permit conditions and violations of permitting requirements.”

The 2007 rule preamble, 72 FR 68000, 68024-26, also does not support the 

commenter’s assertions. That preamble relied in part on the 2005 ASLM letter decision

and the judicial decisions cited therein to support the withdrawal of a specific regulatory 

provision related to “State-issued permits that may have been improvidently issued based 

on certain ownership or control relationships,” which had been previously codified at 30 

CFR 843.21. See 72 FR at 68024. Before it was removed, that section provided for 

“direct Federal inspection and enforcement . . . if, after an initial notice, a State failed to 
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

33

take appropriate action or show good cause for not taking action with respect to an 

improvidently issued State permit.” Id. When OSMRE withdrew that specific regulatory 

provision, however, it did not amend the general TDN regulatory provision that this final 

rule has revised (§ 842.11). Indeed, that preamble did not even mention § 842.11. In any 

event, the 2007 rule preamble language does not expressly pertain to how OSMRE 

interpreted § 842.11, and, as mentioned, OSMRE concludes that its positions in this final 

rule best comport with SMCRA and the relevant implementing regulations. Moreover, as 

discussed above, in 2010, the OSMRE Director, with the concurrence of the Office of the 

ASLM, rejected the rationale in the 2005 ASLM letter decision. 

The 2007 rule preamble cited Nat’l Mining Ass’n v. U.S. Dep’t of the Interior, 177 

F.3d 1 (D.C. Cir. 1999) (NMA v. DOI II), in support of rescinding former § 843.21. 72 

FR at 68025-26. The better reading of that opinion, however, is the Department’s

contemporaneous interpretation in the 2000 preamble, see, e.g., 65 FR 79582, 79652. In

2000, the Department explained, among other things, that, in the NMA v. DOI II decision, 

“the court upheld our ability to take remedial action relative to improvidently issued State 

permits, but found that our previous regulations ‘impinge on the “primacy” afforded 

states under SMCRA insofar as they authorize OSM to take remedial actions against 

operators holding valid state mining permits without complying with the procedural 

requirements set out in section 521(a)(1) of SMCRA, 30 U.S.C. § 1271(a).’” 65 FR at 

79652 (citing NMA v. DOI II, 177 F.3d at 9). In 2000, the Department revised the 

regulation to conform with the court’s decision. The 2007 rule preamble later set forth an

alternative interpretation of the relevant NMA v. DOI II holding, which the Department

no longer supports. See, e.g., 2010 OSMRE Director’s memorandum decision.
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

34

In addition, under section 503(a) of SMCRA, 30 U.S.C. 1253(a), upon OSMRE’s 

approval of a State program, a State “assume[s] exclusive jurisdiction over the regulation 

of surface coal mining and reclamation operations, except as provided in sections 1271 

[SMCRA section 521] and 1273 of this title and subchapter IV of this chapter . . . .” 

(Emphasis added.) This final rule implements section 521 of SMCRA and thus is an 

exception to a State’s otherwise-exclusive jurisdiction. SMCRA also refers to a State’s 

“primary responsibility.” See, e.g., 30 U.S.C. 1291(26) (defining “State regulatory 

authority” to mean “the department or agency in each State which has primary 

responsibility at the State level for administering [SMCRA].”). However, this language is 

describing which State department or agency will administer SMCRA at the State level

and does not remove OSMRE oversight in any way. The final rule is consistent with the

State regulatory authority’s responsibility to administer SMCRA, which affords the SRA

the first opportunity to address the underlying issue identified in a TDN. And OSMRE is 

prepared to accept a State’s response to a TDN unless it is arbitrary, capricious, or an 

abuse of discretion, which is an appropriately high level of deference.

OSMRE disagrees with the commenter’s other assertions about how this rule 

impinges on State primacy. This final rule does not allow OSMRE to intervene in a 

State’s permitting action while the permit application is under review, nor does it contain 

any language that circumvents the process for appealing a State’s permitting actions. A 

TDN is appropriate to address situations where a permittee is not mining in accordance 

with the approved permit or the approved State permit allows the permittee to mine in a 

manner that is inconsistent with the approved State program.

In sum, this final rule is consistent with SMCRA and binding legal precedent.
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

35

E. “Any Person” Who Can Be in Violation of SMCRA

Comment: Some commenters asserted that in section 521(a)(1) of SMCRA, “any 

person” who can be in violation of SMCRA or the applicable State program means a 

permittee, not the SRA.

Response: As explained in section I.B of this preamble, OSMRE concludes that “any 

person” in violation under section 521(a)(1) of SMCRA includes an act or omission by an 

SRA that is inconsistent with its State program. The relevant SMCRA language refers to 

“any person [] in violation of any requirement of this Act or any permit condition 

required by this Act . . . .” As noted above, the preamble to the 2020 TDN Rule stated 

that “any person” who can be in violation of SMCRA or a State regulatory program 

“does not include a State regulatory authority, unless it is acting as a permit holder.” 85 

FR at 75176; see also id. at 75179. However, after careful consideration and review, 

OSMRE concludes that an SRA is not exempt from the meaning of the phrase “any 

person” in this context. For over four decades, the Federal regulations at 30 CFR 700.5 

have defined “any person” to include “any agency, unit, or instrumentality of Federal, 

State or local government . . . .” This definition would clearly include an SRA, which is 

an agency or unit of a State government. OSMRE did not change this general definition

in the 2020 TDN Rule even though it excluded an SRA from “any person” in the TDN 

context. OSMRE now concludes that the term “any person” in 30 U.S.C. § 1271(a)(1) 

should match this long-standing definition. As a result, a TDN could be issued for a 

possible violation if the SRA issues a permit that is not in compliance with an approved 

State program or that authorizes a permittee to mine in a manner that is inconsistent with 

that program. If an SRA issues such a permit, that would be a violation of a “requirement 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

36

of this Act” or the applicable State program. Thus, under this final rule, if an SRA issues 

a permit that would allow a permittee to mine in a manner that is inconsistent with the 

approved permit or the approved State program, or that fails to include one or more 

required provisions of the approved State program, that will be considered as a possible 

violation for TDN purposes. 

F. Permit Defects

Comment: Some commenters supported the proposed rule, stating that it properly 

recognized that SMCRA intended “permit defects” to be among the types of violations 

that OSMRE must address under the TDN process as an avenue for citizens to raise 

concerns with permit-related actions that may impact their lives.

Response: OSMRE appreciates these commenters’ support for the proposed change 

requiring a TDN be sent to an SRA for a possible violation in the form of a permit defect. 

As outlined in the preamble to the proposed rule and discussed in sections 1.B and III.F

of this preamble, OSMRE agrees with these commenters and concludes that a close 

reading of SMCRA indicates that permit defects, just like all other possible violations, 

are subject to a TDN. Thus, under this final rule, OSMRE, upon forming reason to 

believe a violation exists, will consider permit defects under 30 CFR part 842. 

Comment: A few commenters asserted that OSMRE should ensure that the 

regulations make clear that a violation is “earth bound.” As support, the commenters 

noted that, when discussing a Federal inspection, SMCRA section 521(a)(1) refers to 

alleged violations occurring at a surface coal mining operation and that the last sentence 

of that provision allows citizen complainants to accompany an inspector on a Federal 

inspection.
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

37

Response: We disagree with the conclusions the commenters reach from the statutory 

provision cited. In order to determine if a surface coal mining operation is meeting the 

approved program or any permit condition as required by both the existing and final rule 

at § 842.11(b)(1)(i), it is sometimes necessary for OSMRE to not just observe a mine site, 

but also to review and examine the SRA’s permitting material. As a result of this review, 

a violation may be identified in those materials regardless of whether that violation can 

also be observed at the mine site. Indeed, the existing Federal regulations require SRAs to 

make records related to surface coal mining operations available to OSMRE. 30 CFR 

840.14(a). Because OSMRE sometimes needs to review the permitting files, OSMRE has 

historically viewed these files and related materials as items that should be considered 

during a Federal inspection. OSMRE adheres to that long-standing approach in this final 

rule.

G. Procedural Determinations

Comment: A few commenters asserted that the 2023 proposed TDN rule would 

produce “significant new, unjustified” exchanges of paper between OSMRE and the 

SRA, resulting in increased burden.

Response: OSMRE’s analysis under the Paperwork Reduction Act indicates that there 

will be no new OSMRE requests for information as a result of the changes in this final 

rule. Consequently, the final rule will not increase the regulatory burden. Under this final 

rule, OMSRE will only consider information contained in a citizen complaint, 

information already in OSMRE’s files at the time of a citizen complaint, and publicly 

available electronic information to inform whether OSMRE has reason to believe a 

violation may be present.
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

38

OSMRE strives to reduce redundancy particularly when a simple search for publicly 

available electronic records can often adequately inform the “reason to believe” analysis 

and determination. As such, there is no additional transactional cost or burden created 

between the SRA and OSMRE when available data from the three identified sources

provides sufficient information collection to reach a sound decision on whether OSMRE 

has reason to believe. Based on OSMRE’s experience, it does not believe more TDNs 

will result from implementing this final rule when viewed in the context of OSMRE’s 

history related to writing TDNs. Additionally, OSMRE estimates that the number of 

TDNs and associated burden hours will stay the same as what is currently authorized by 

OMB 1029-0118. Moreover, the SRAs already have a legal responsibility to address 

underlying possible violations in accordance with their approved State programs. A TDN 

is OSMRE’s mechanism to notify an SRA of a possible violation in accordance with 

OSMRE’s statutorily mandated oversight responsibilities. Even if an increase in TDNs 

does result in an SRA needing to generate more responses to OSMRE, addressing 

substantively similar possible violations as a single State regulatory program issue and 

not requesting information from the SRA at the time OSMRE is determining whether it 

has reason to believe a violation exists will introduce efficiencies in the process and limit 

paperwork burdens in those situations.

Comment: Some commenters asserted that the rule “totally redefines the relationship 

between itself and the States by essentially eliminating State primacy under SMCRA” 

such that OSMRE must prepare a federalism summary impact statement.

Response: OSMRE disagrees. As explained in the responses above, this rule neither 

makes OSMRE a co-regulator in primacy states nor otherwise deviates from SMCRA’s 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

39

statutorily defined cooperative federalism. SRAs will still retain exclusive jurisdiction 

subject to OSMRE’s oversight and enforcement authority set forth in 30 U.S.C. 1271 and 

1273. The final rule focuses on OSMRE’s process for handling citizen complaints, 

issuing TDNs, and OSMRE’s oversight responsibilities, all of which are provided for in 

30 U.S.C. 1271(a)(1)—an exception to the exclusive jurisdiction of the SRAs. If an SRA

receives a TDN from OSMRE, the SRA will continue to have the first opportunity to 

address possible violations in accordance with their approved State program, which 

remains codified in its State laws and regulations. While revising the existing regulations 

governing the TDN process will have a direct effect on the States’ and the Federal 

government’s relationship with the States, this effect will not be significant, as it will 

neither impose substantial unreimbursed compliance costs on States nor preempt State 

law. OSMRE also does not believe more Federal inspections and Federal enforcement 

actions in primacy States will result from this rule. As discussed in the response to the 

preceding comment, this rule will not significantly increase burdens on SRAs to address 

and resolve underlying issues. As such, a federalism summary impact statement is not 

required.

Comment: A few commenters stated that the TDN rule would increase regulatory 

burdens on SRAs so OSMRE needs to prepare a regulatory flexibility analysis under the 

Regulatory Flexibility Act. 

Response: OSMRE disagrees with these comments because, as discussed in prior 

responses to comments, the new rule provisions are considered enhancements in aiding 

more efficient and effective enforcement rather than adding new significant regulatory 

burden on SRAs. 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

40

H. Minor Text Changes and Conforming Edits 

Comment: A few commenters stated that changes in the regulatory text that are 

editorial or introduce plain language changes in the rule text may be interpreted by courts 

as substantive changes. These commenters suggested that OSMRE should not make any 

editorial changes so that a court cannot reinterpret the intended meaning. 

Response: OSMRE disagrees with the commenters. OSMRE has made certain 

changes in language pursuant to the Plain Writing Act of 2010 to improve the readability 

of the rule that do not affect its substance. Any challenges to these minor, non-substantive 

wording changes would likely withstand legal scrutiny, particularly when OSMRE has 

noted that it did not intend substantive changes in meaning.

IV. Section-By-Section Summaries of and Responses to Public Comments

This section presents a summary of the final rule revisions, section-by-section, 

accompanied with summaries of comments and OSMRE’s responses to the comments. 

This section starts with the revisions to 30 CFR part 842, followed by the revisions to 30 

CFR part 733, to mirror the sequence of the TDN process (i.e., issuance of a TDN under 

part 842, followed by possible grouping of substantively similar possible violations into a 

State regulatory program issue under part 733). 

A. 30 CFR 842.5 

Summary of final rule provisions at 30 CFR 842.5: The final rule creates a new 

definitions section at 30 CFR 842.5 that includes definitions for the terms “citizen 

complaint” and “ten-day notice.” The definition of “citizen complaint” includes the word 

“possible” to modify “violation,” indicating that not all complaints need to contain an 

affirmative allegation of a violation but can still identify a possible violation. The 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

41

definition of “ten-day notice” provides a uniform understanding of the term, emphasizing 

that a TDN is a communication mechanism that OSMRE uses to inform an SRA of a 

possible violation of its State regulatory program when OSMRE has reason to believe 

such a violation exists. 

Comment: Some commenters supported the proposed definition of “ten-day notice” 

and the recognition that the TDN is a communications mechanism and not a judgment or 

determination on the performance of the permittee, operator, or SRA. 

Response: OSMRE appreciates the support and again reiterates that a TDN is not an 

enforcement action in and of itself and the issuance of a TDN is not a negative reflection 

on the permittee, operator, or the SRA. It is simply the mechanism that OSMRE uses to 

inform an SRA about a possible violation so that the SRA can investigate that allegation

and take action to abate the violation if the SRA determines a violation exists. 

Comment: Some commenters stated that “citizen complaint” and “ten-day notice” 

already have sufficient meaning and do not need to be defined. 

Response: OSMRE disagrees with these comments. While implementing the SMCRA 

program, OSMRE has heard various proposed interpretations for both terms from 

citizens, SRAs, and among its own staff. For example, during TDN implementation, 

OSMRE has observed a range of references to citizen complaints that characterize the 

complaints as anything ranging from any information received to information that must 

be “perfected” before it would be considered a citizen complaint. These disparate 

definitions mean that different people may treat information received from citizens 

differently. For example, one person may consider the information received and start the 

TDN process whereas another person may review similar information, deem it 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

42

unperfected, and delay action or forgo issuing a TDN. OSMRE is introducing regulatory 

certainty by establishing uniform definitions of these common terms. 

Comment: One commenter asserted that the proposed changes to the TDN process 

convert the TDN from a communication tool to an enforcement tool. 

Response: OSMRE does not agree with this comment. There are no enforcement 

provisions associated with a TDN itself, and there is no enforcement downstream of a 

TDN unless a State does not respond to the TDN or the response is arbitrary, capricious, 

or an abuse of discretion. That standard is deferential, and, in this regard, this final rule is 

no different than prior iterations of the rules. As such, a TDN is accurately described as a 

communication mechanism between OSMRE and an SRA about a possible violation. 

Comment: One commenter suggested that OSMRE specify that the definition of 

“citizen complaint” includes “any information received from any person by the OSMRE 

of a condition or practice that might be a possible violation of the Act...” (emphasis

added to identify the commenter’s suggested additions to the rule text). 

Response: As OSMRE understands the comment, adding this language to the 

definition of “citizen complaint” would not improve the definition of the term or add any 

clarity because the suggested phrase is encompassed by the definition of the term in this 

final rule. If a questionable condition or practice is occurring, the key question is whether 

it constitutes a possible violation of a State program. If OSMRE has reason to believe a 

possible violation exists, OSMRE will issue a TDN to the relevant SRA for the condition 

or practice. The proposed language is therefore unnecessary and could imply that other 

possible violations of a State program are not encompassed by the definition. 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

43

Comment: One commenter suggested changing the term “ten-day notice” to “TenDay Notification to Respond” because the proposed rule will create two types of TDNs, 

one that results from a possible SRA violation and a second that results from a citizen 

complaint.

Response: OSMRE disagrees that this rule creates two types of TDNs, and it sees no 

benefit in revising the term or in using two terms to describe a single process. OSMRE 

determines whether it has reason to believe a violation exists from any source of 

information concerning a possible violation, including information from a citizen or from 

an oversight inspection. If it makes such a determination, OSMRE will send the SRA a 

TDN, regardless of whether that possible violation stems from an action of the permittee 

or from an SRA issuing a permit that is inconsistent with the approved State program or 

that would allow a permittee to mine in a manner that is inconsistent with the State 

program.

B. 30 CFR 842.11(b)(1)(i)

Summary of final rule revisions to 30 CFR 842.11(b)(1)(i): As in the proposed rule, 

the final rule limits the sources of information that OSMRE reviews when determining 

whether OSMRE has reason to believe a violation exist. The final rule amends the text of 

§ 842.11(b)(1)(i), in pertinent part, to state that the authorized representative determines 

whether there is “reason to believe” that there is a violation based on “information 

received from a citizen complainant, information available in OSMRE files at the time 

that OSMRE is notified of the possible violation (other than information resulting from a 

previous Federal inspection), and publicly available electronic information.” 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

44

Comment: Some commenters asserted that the proposed rule impermissibly raises the 

bar on Federal action, impermissibly delays notification to the SRAs through the TDN 

process, and is inconsistent with SMCRA because OSMRE would delay issuance of a 

TDN until after a records search of all electronic databases, any complaint information, 

and other information not in the agency’s possession when the complaint is received.

Response: OSMRE disagrees with these comments. SMCRA affords OSMRE 

discretion to establish whether OSMRE has reason to believe a violation exists based on 

“any information available.” 30 U.S.C. 1271(a)(1). OSMRE review of these three sources 

of information that are available to it at the time the citizen complaint is received neither 

“raises the bar” with respect to information collection nor delays notification to a State of 

a possible violation because OSMRE must still form the predicate belief in a possible 

violation. In this rule, OSMRE merely explains the processes it will use to form that 

belief. Thus, OSMRE will review the citizen complaint and information that OSMRE 

already has in its files or from publicly available electronic information. In addition, 

OSMRE, in its expertise, has sufficient knowledge to identify pertinent publicly available 

electronic information that may be relevant to the citizen complaint and that will help it 

to determine whether it has reason to believe a violation exists. OSMRE does not 

envision exhaustive, time-consuming reviews of any of these sources of information. 

This final rule eliminates the potential that the 2020 TDN Rule could allow for an

open-ended, information gathering process before OSMRE determines whether it has 

reason to believe a violation exists; however, the final rule retains the 2020 TDN Rule’s 

removal of the “if true” standard. Therefore, this final rule will allow OSMRE to proceed 

more quickly and efficiently than under the 2020 TDN Rule when making a reason to 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

45

believe determination. At the same time, this final rule will allow OSMRE to exercise its 

expertise in reviewing citizen complaints to determine whether there is reason to believe 

a possible violation of SMCRA, the regulations, the State program, or permit condition 

exists before deciding whether to send the SRA a TDN. 

Comment: Some commenters supported OSMRE’s limiting of the information it can 

review when establishing reason to believe to that information found in the complaint, 

publicly available electronic information, and information OSMRE already possesses. 

Response: OSMRE appreciates these comments. Limiting the information to these 

three sources will result in an expeditious “reason to believe” determination while at the 

same time making the process more efficient. 

Comment: Some commenters agreed that the complainant may not understand 

SMCRA’s technical details, but an agency official, trained in interpreting regulations, can 

determine if a possible violation exists and notify the SRA.

Response: OSMRE agrees with these comments. OSMRE has developed considerable 

expertise since the enactment of SMCRA in 1977 as it implements SMCRA in Federal 

program States and on Indian lands across the country and provides oversight of the 24 

State programs. As stated above, this final rule allows OSMRE to use this expertise to 

initially evaluate a citizen complaint along with limited sources of other information, 

determine if a possible violation exists, and, if so, let the SRA know using a TDN.

Comment: One commenter supported the changes that limit the information OSMRE 

can consider when evaluating a citizen complaint and restore the requirement that 

complaints contain “information” rather than “documentation.”
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

46

Response: OSMRE appreciates the commenter’s support. SMCRA affords citizens 

with the opportunity to report possible violations to either the SRA or OSMRE. Likewise, 

it contains a low threshold with respect to OSMRE establishing reason to believe a 

violation exists and stops short of requiring documentation from a citizen complainant 

before OSMRE decides whether to send a TDN to the SRA. Thus, in final sections 

842.11(b)(1)(i) and 842.11(b)(2), OSMRE will not require a citizen to provide 

documentation; instead, OSMRE will consider any information that a citizen complainant 

provides.

Comment: Some commenters asserted that excluding SRA input will result in 

redundant, duplicative enforcement processes.

Response: OSMRE disagrees. OSMRE’s goal is not to exclude SRA input but rather

to remove a process that is duplicative of the TDN process itself, which will expedite 

OSMRE’s initial evaluation of the prospective violation. In addition, under SMCRA, the 

TDN is the communication mechanism that OSMRE sends to the SRA whenever

OSMRE has reason to believe a violation exists. As explained above, OSMRE will only 

take enforcement action if the SRA fails to respond to the TDN or the response is 

arbitrary, capricious, or an abuse of discretion. Thus, there will not be redundant 

enforcement processes.

Comment: One commenter stated that State-supplied information should be 

considered when establishing reason to believe a violation exists.

Response: OSMRE disagrees with the commenter. OSMRE concludes that seeking 

and considering information from an SRA before making a reason to believe 

determination is not the best interpretation of section 521(a)(1) of SMCRA and creates a 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

47

duplicative process within the TDN process. However, publicly available electronic 

information may include publicly viewable SRA permitting databases, water monitoring

and reporting databases, GIS applications, and other easily viewable information. 

Comment: A few commenters suggested that OSMRE should develop an internal 

OSMRE policy on information collection in lieu of this rulemaking.

Response: OSMRE recognizes that it may have been able to use internal policy 

guidance, such as a directive, to clarify to its own staff what types of information 

OSMRE could consider when evaluating a citizen complaint to determine if it has reason 

to believe a violation exists. However, given the indirect impacts on SRAs and the public 

as well as SMCRA’s focus on “assur[ing] appropriate procedures are provided for public 

participation[,]” 30 U.S.C. 1202(i), we concluded that regulations, rather than internal 

and non-binding policy documents, were the appropriate mechanism because they are 

more transparent, easily accessible, and create more regulatory certainty than an internal 

guidance document. OSMRE will continue to employ internal policy documents and 

directives, as necessary, to ensure that OSMRE staff are properly and consistently 

implementing the final rule. Therefore, OSMRE intends to revise the relevant policy and 

guidance documents after this final rule becomes effective to ensure there are no conflicts 

between the final rule and preexisting guidance.

Comment: Some commenters asserted that delays in the TDN process will result from 

OSMRE reviewing all information contained in OSMRE files, publicly available 

electronic information, and information contained in a citizen complaint. 

Response: OSMRE recognizes that there may be some small delay as OSMRE 

reviews information in the citizen complaint, information in OSMRE’s files, and publicly 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

48

available electronic information; however, this delay should be minor compared to the 

delays that have sometimes occurred under the 2020 TDN Rule as OSMRE sought 

additional information from an SRA and thoughtfully considered the information that had 

been received. By allowing OSMRE to consider only these three sources of information 

available to it at the time it receives the citizen complaint, OSMRE should be able to 

more expeditiously establish whether reason to believe a possible violation exists, and, if 

so, send the SRA a TDN so that the SRA can conduct an investigation and respond to 

OSMRE within ten days. Therefore, while it may be marginally faster for OSMRE to act 

simply as a pass through for citizen complaints, this process is streamlined in comparison 

to the existing rule.

Comment: Some commenters assert that the scope of information considered in the 

proposed rule is inconsistent with SMCRA, which, according to these commenters,

requires OSMRE to consider “all information available.” 

Response: OSMRE disagrees with the commenters’ assertion that OSMRE must 

consider “all information available.” SMCRA section 521(a)(1) provides that OSMRE 

should consider “any information available” to determine if it has reason to believe a 

violation exists, not all information that tends to disprove the existence of a possible 

violation. Even in the 2020 TDN Rule, OSMRE recognized that it should not consider 

“all information available” and sought to put sideboards on data collection by basing a 

reason to believe determination on “any information readily available.” 30 CFR 

842.11(b)(1)(i) (see also 842.11(b)(2) (referencing “any information readily available”)). 

The preamble to the 2020 TDN Rule stated:
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

49

Moreover, as OSMRE explained in the [2020] proposed rule preamble, 

OSMRE considers “any information that is accessible without 

unreasonable delay” to be “readily available information.” 85 FR at 

28907. In the [2020] proposed rule, OSMRE chose the phrase “readily 

available” purposely “so that the process will proceed as quickly as 

possible and will not become open-ended.” Id.

85 FR at 75163. 

However, because the 2020 TDN Rule did not limit sources of information it 

considered to be “readily available” as this final rule does, in some instances there have 

been extensive investigations and data collection before issuance of a TDN or before 

OSMRE determined whether reason to believe existed. This result is contrary to section 

521(a)(1), which focuses on correcting possible violations expeditiously.

To reduce any delay, the final rule provides that OSMRE should use its best 

professional judgment, including any information it has on hand when it receives the 

citizen complaint, to determine whether it has reason to believe a violation exists. This 

approach strikes a balance between collecting all available information, which could 

include information obtained from any source after the citizen complaint is received, 

along with the attendant delays in seeking and considering such information, and 

considering only information in a citizen complaint, which was the case prior to the 2020 

TDN Rule. The more limited information that OSMRE will consider under this final rule 

fully comports with the statutory directive to consider “any information available” to 

determine whether OSMRE has reason to believe a violation exists, as well as the 

structure of section 521(a)(1), which seeks to resolve possible violations quickly.
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

50

Comment: One commenter asked if OSMRE could provide an example of the 

information that will no longer be used for a reason to believe determination if the 

objective of the change is to expedite the TDN process.

Response: Under the final rule, OSMRE will only consider information contained in 

its files at the time it is notified of a possible violation, information contained in a citizen 

complaint, and publicly available electronic information. All other sources of information 

will not be considered when OSMRE determines whether it has reason to believe a 

violation exists. Information excluded could include information provided by an SRA or 

permittee after OSMRE received the citizen complaint that is not publicly available. 

These limitations will help to prevent an open-ended investigation of the possible 

violation before OSMRE determines whether to issue a TDN. 

Comment: One commenter noted that the proposed rule suggested that OSMRE will 

consider verbal allegations when making “reason to believe” determinations and 

recommends removing the option for an oral complaint to prevent inconsistencies 

between verbal and written complaints.

Response: Accepting a verbal citizen complaint and request for a Federal inspection, 

followed by submission of the complaint in writing, has been a feature of the regulations 

for many years. See 30 CFR 842.12(a). In order to ensure public participation in the 

enforcement of SMCRA, especially from those who may not be well-versed in SMCRA 

or its regulations, as well as comply with the requirements of section 517(h)(1), OSMRE 

will continue to allow a verbal citizen complaint as long as the oral complaint is followed 

up in writing.

C. 30 CFR 842.11(b)(1)(ii)
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

51

Summary of final rule revisions to 30 CFR 842.11(b)(1)(ii): At 30 CFR 

842.11(b)(1)(ii)(B)(1), the final rule adds a new sentence at the end of the existing 

provision. In the final rule, the sentence reads: “Where appropriate, OSMRE may issue a 

single ten-day notice for substantively similar possible violations found on two or more 

permits, including two or more substantively similar possible violations identified in one 

or more citizen complaints.” In the proposed rule, OSMRE proposed to include the 

phrase “involving a single permittee” after “two or more permits.” The rationale for this 

change to the proposed rule is discussed in section II of this preamble. 

At 30 CFR 842.11(b)(1)(ii)(B)(3), this final rule also eliminates the language from the 

existing regulations that allowed for the possibility that corrective action plans for State 

regulatory program issues under 30 CFR part 733 could be a form of “appropriate action”

in response to a TDN. Instead, in appropriate circumstances, under the final rule at new 

paragraph 842.11(b)(1)(ii)(B)(4)(iii), State regulatory program issues addressed under 

final § 773.12, and associated action plans, will be included under the “good cause”

exception for not acting in response to a TDN, aligning the regulations more closely with 

statutory requirements. Finally, the good cause provision of the final rule at paragraph 

842.11(b)(1)(ii)(B)(4)(ii) outlines specific time limits for SRAs to request extensions to 

determine whether a violation exists, with a maximum cap of 90 additional days, 

emphasizing expeditious resolution. 

Comment: Some commenters noted that SMCRA section 521(a)(1) authorizes the 

issuance of a TDN only when there is reason to believe that a violation—not the plural 

“violations”—exists.
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The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

52

Response: To the extent that these commenters are suggesting that OSMRE must

issue a separate TDN for each individual possible violation, OSMRE disagrees with the 

commenters. SMCRA section 521(a)(1) does not limit the number of possible violations 

that can be included in a TDN. Nor does SMCRA limit the number of substantively 

similar possible violations that OSMRE can group together as a single State regulatory 

program issue.

Comment: Some commenters asserted that an action plan should not count as either

appropriate action or good cause for not taking such action. The commenters also 

asserted that an action plan does not replace immediate enforcement action if violations 

become manifest.

Response: As noted above, we agree with the commenters that development of an 

action plan does not constitute appropriate action that in and of itself corrects a violation 

in a manner consistent with SMCRA. As such, OSMRE has concluded that it is not 

correct to consider development of an action plan as appropriate action in response to a 

TDN. 

We disagree with the commenters, however, that development of an action plan could 

not be good cause for not taking appropriate action. As noted in this final rule, OSMRE 

added § 842.11(b)(1)(B)(4)(iii) to specify that State regulatory program issues addressed 

through a § 733.12 action plan could constitute good cause. An action plan would ensure 

the violation is corrected, even if the correction does not occur until after the plan is 

executed. Allowing a State to invoke good cause for addressing a possible violation 

through an action plan does not, however, mean that the underlying violation will not be 

corrected. Instead, it means that the correction of the violation may occur later as the 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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systematic issues are addressed, which could be as late as the implementation of the 

action plan, but may be sooner. For example, under this final rule at paragraph 733.12(d), 

even if a possible violation is being addressed as a State regulatory program issue, an 

SRA can take direct enforcement action under its State regulatory program and OSMRE 

can take additional appropriate oversight enforcement action. Alternatively, if OSMRE 

has adequate proof of an imminent harm, OSMRE would immediately conduct a Federal 

inspection even if OSMRE is also developing a part 733 action plan.

Comment: Some commenters recommended that OSMRE should allow a request for 

additional time to be considered an appropriate action.

Response: A request for additional time to review a specific situation is not 

considered an “appropriate action to cause the said violation to be corrected” as required 

by 30 U.S.C. 1271(a)(1), but more appropriately falls under the good cause provision for

not acting to correct the violation within ten days. Requesting more time to evaluate a 

situation can be an appropriate response to a TDN, but it should not be confused with an 

appropriate action to correct the violation. 

Comment: One commenter requested that OSMRE retain the language in the 2020 

TDN Rule that allows for a State issuance of a notice of violation (NOV) with 

appropriate remedial measures and deadlines to be regarded as appropriate action.

Response: The 2020 TDN Rule allowed OSMRE to consider an SRA’s response 

indicating that it had written an NOV to the permittee for the possible violation contained 

in a TDN to be an appropriate action in response to a TDN. This final rule does not 

change that concept. 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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Comment: Some commenters asserted that use of action plans for violations erases 

the distinction between SMCRA section 521(a) “on-the-ground” violations and section

521(b) State regulatory program issues. The commenters stated that OSMRE must use its 

Federal substitution regulations when a State regulatory program issue is evident rather 

than developing an action plan or using the TDN process.

Response: OSMRE disagrees with this assertion. As explained in sections I.B and 

III.E of this preamble, SMCRA section 521(a) contains the conceptual framework for 

addressing a violation of “any person”—either a permittee’s violation or a violation 

stemming from an SRA’s improper implementation of its approved program. Addressing 

on-the-ground violations and State regulatory program issues through the § 842.11

process is consistent with SMCRA and OSMRE’s approach in this rule. 

Moreover, as we explained in the preamble to the 2020 TDN Rule, the addition of 

corrective action plans under § 773.12(a)(2) did not “significantly alter OSMRE's 

implementation of the SMCRA program” because OSMRE has used a similar process 

through guidance documents for years. 85 FR at 75153. The final rule retains the use of 

the action plan process “to more easily address, with the cooperation of the State 

regulatory authority, situations where an alleged violation can be traced to a systemic 

problem within an existing State regulatory program.” Id. at 75172. OSMRE maintains, 

as it did in the 2020 TDN Rule, that corrective action plans are “consistent with 

SMCRA’s cooperative federalism approach, and OSMRE expects to use revised 30 CFR 

733.12 more frequently than it has traditionally used its authority to substitute Federal 

enforcement or withdraw State program approval because it will allow OSMRE to work 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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with a State regulatory authority to cooperatively correct a State regulatory program 

issue.” Id. 

If, at any time, OSMRE is addressing a potential violation that is a State regulatory 

program issue and later concludes that the SRA is not effectively implementing, 

administering, enforcing, or maintaining any part of its approved State regulatory 

program, OSMRE may then also initiate procedures at § 733.13 to substitute Federal 

enforcement or withdraw approval of the State regulatory program. A State regulatory 

program issue by itself does not, at least initially, rise to the level of calling for 

substituting Federal enforcement or withdrawing the State program, especially if the state 

is working with OSMRE to implement an action plan. Identification of a State regulatory 

program issue, instead, is intended to provide an efficient process for an SRA to work 

with OSMRE to ensure it is effectively implementing its program before the State 

regulatory program issue “warrant[s] the rare remedies of substitution of Federal 

enforcement or withdrawal of an approved State program.” Id. at 75175.

Comment: Commenters stated that informal review afforded to an SRA under 30 

C.F.R. 842.11(b)(1)(iii) should not interfere with OSMRE’s obligation to initiate a 

Federal inspection and enforcement action, as there is no legal authorization in the text or 

legislative history of SMCRA for OSMRE to wait for informal review to be complete 

before conducting a Federal inspection if OSMRE concluded, after receiving an SRA’s 

TDN response, that the State failed to take appropriate action or did not have good cause 

for doing so.

Response: Existing 30 CFR 842.11(b)(1)(iii)(A) indicates that when OSMRE notifies 

an SRA that its response to a TDN does not constitute appropriate action or good cause, 
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The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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the State is entitled to seek informal review by OSMRE’s Deputy Director. Also, in 

general, paragraph 842.11(b)(1)(iii)(B) provides that no Federal inspection can be 

conducted, or corresponding enforcement action taken, until the informal review is 

completed. OSMRE did not propose to amend its informal review process and declines to 

make any changes now based on these comments. Because of the importance of these 

procedures, any such changes should be subject to full notice and comment, especially 

from the SRAs, who would be most affected by any changes. 

Comment: One commenter asserted that actions plans should not be considered “good 

cause” for failing to take appropriate action because an action plan itself is a type of 

action. Thus, this commenter opined that when an SRA enters into an action plan, it 

should be considered “appropriate action.” Because OSMRE only evaluates whether a 

State has shown “good cause” when the SRA fails to act on a TDN, actions it takes under 

an action plan should not be part of OSMRE’s “good cause” determination. 

Response: As explained above, OSMRE disagrees. Section 521(a)(1) provides that 

OSMRE should conduct a Federal inspection if the SRA “fails within ten days after 

notification to take appropriate action to cause said violation to be corrected or to show 

good cause for such failure.” 30 U.S.C. 1271(a)(1). While we agree with the commenter’s

overarching point that an action plan will cause the violation to be corrected, that 

correction did not happen during the ten days in which the SRA responded to OSMRE’s 

TDN. Therefore, it is more consistent with SMCRA to consider action plans as “good 

cause” in response to a TDN.
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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Comment: One commenter requested clarification on whether, because of OSMRE 

not allowing action plans to be appropriate action in response to a TDN, a TDN will be 

considered an open, unresolved enforcement action until the action plan is completed.

Response: A TDN would remain open while an action plan is being used to resolve 

an underlying violation. Upon successful completion of the action plan, the SRA will be 

deemed to have taken appropriate action because the underlying violation will have been 

abated, and the TDN will be resolved. As noted above, the TDN is a communication 

mechanism and is not itself an enforcement action.

Comment: Some commenters supported the shortened time limits for how much 

additional time States may request to respond to a TDN. The commenters noted that this 

will be 30 days in most cases and 60 days in complex cases.

Response: Under this final rule, an SRA must continue to respond to a TDN within 

ten days. The time frames to which the commenters are referring apply to the good cause 

provisions under final 30 CFR 842.11(b)(1)(ii)(B)(4)(ii) after a TDN is issued. Under that 

provision, good cause includes when “[t]he State regulatory authority has initiated an 

investigation into a possible violation and has determined that it requires an additional 

amount of time to determine whether a violation exists.” This additional amount of time 

may be days or weeks, which is obviously necessary sometimes to develop material to 

determine whether a violation does exist. As the commenter notes, under this final rule, 

the “State regulatory authority may request up to 30 additional days to complete its 

investigation of the issue; in complex situations, the State regulatory authority may 

request up to an additional 60 days to complete its investigation.” Further, “[t]he sum 

total of additional time for any one possible violation must not exceed 90 days.” Under 
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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the 2020 TDN Rule, the SRA’s investigation could have been for a “reasonable, specified 

amount of time.” As that provision did not provide concrete time frames to ensure 

expeditious correction of violations, OSMRE concluded that it was appropriate to include 

the 30-day and 60-day time frames.

Comment: One commenter requested clarification that the revised action plan process 

will not be used as a justification for SRA failure to take appropriate action or to show 

good cause for such failure and requested that OSMRE take immediate inspection and 

enforcement action to correct on-the-ground violations resulting from programmatic 

failures. 

Response: An action plan will not be used as a “justification for failure,” meaning an 

SRA cannot have an action plan ongoing indefinitely while the underlying violation 

remains uncorrected. All action plans will have defined timelines, stated objectives, and 

criteria defining success. This final rule sets concrete timelines on creation and 

completion of action plans (see § 773.12(b)), which will ensure timely resolution of 

underlying violations. An SRA cannot claim action plan completion without addressing

the underlying violation. Moreover, even when OSMRE and a State are pursuing an 

action plan, final § 733.12(d) allows an SRA to take direct enforcement actions and 

OSMRE to take appropriate oversight enforcement actions, as necessary. Further, under 

§ 842.11(b)(1)(i), in imminent harm situations OSMRE will proceed directly to a Federal 

inspection, which ensures that these situations will be handled promptly. 

Comment: One commenter stated that existing 30 CFR 842.11(b)(1)(iii)(B) should be 

rewritten to provide that a request for informal review by an SRA of OSMRE’s 

determination that the SRA has failed to take appropriate action or to show good cause 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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for such failure should not delay or prevent either a Federal inspection or issuance of an 

enforcement order for the violation.

Response: OSMRE did not propose to modify existing 30 CFR 842.11(b)(1)(iii)(A) 

regarding informal review afforded to SRAs. As such, that provision, along with 

paragraph 842.11(b)(1)(iii)(B), is now beyond the scope of this rulemaking. OSMRE 

declines to make the requested change. 

D. 30 CFR 842.11(b)(2)

Summary of final rule revisions to 30 CFR 842.11(b)(2): As in the proposed rule, the 

final rule adds two new sentences to § 842.11(b)(2) specifying that: “All citizen 

complaints will be considered as requests for a Federal inspection under § 842.12. If the 

information supplied by the complainant results in a Federal inspection, the complainant 

will be offered the opportunity to accompany OSMRE on the Federal inspection.” These 

changes remove the requirement that a citizen specifically request a Federal inspection, 

which should eliminate any confusion regarding the processes associated with citizen 

complaints versus requests for Federal inspections. Additionally, and as previously 

discussed, this final rule also amends § 842.11(b)(2) by revising the information that 

OSMRE will consider when determining if OSMRE has reason to believe a violation 

exists. Finally, the final rule removes the existing language providing that OSMRE will 

have reason to believe a violation exists if facts known to OSMRE “constitute simple and 

effective documentation of the alleged violation . . . .” Instead, the final rule provides 

that OSMRE will have reason to believe that a violation exists if the facts “support the 

existence of a possible violation . . . .”
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Comment: Some commenters supported the revisions that restore SMCRA’s intent to 

treat all citizen complaints as requests for Federal inspection. These commenters also 

supported eliminating the requirement that a citizen first notify the SRA and then explain 

to OSMRE why the State’s response was insufficient.

Response: OSMRE agrees. Treating all citizens complaints as requests for Federal 

inspections is consistent with SMCRA. OSMRE has revised the implementing regulatory 

language at §§ 842.11(b)(2) and 842.12(a) to reflect that. In addition, as explained in 

section I.B of this preamble, allowing citizens to contact OSMRE directly about a 

possible violation without an express requirement to contact the SRA is consistent with 

SMCRA and alleviates any tension or stress associated with a citizen contacting the SRA

in situations where the citizen is not comfortable with doing so. As also discussed in

section I.B of this preamble, OSMRE has explained why it eliminated the requirement at 

existing § 842.12(a) for a citizen to state the basis for their assertion that the SRA has not 

acted.

Comment: As explained in the discussion above, one commenter agreed that all 

citizen complaints should serve as requests for Federal inspections, even if inspections 

are not specifically requested.

Response: OSMRE appreciates this comment, and as explained elsewhere, has 

decided to finalize the corresponding regulatory provisions as proposed at sections 

842.11(b)(2) and 842.12(a). If a citizen complaint, whether or not it specifically requests 

a Federal inspection, gives OSMRE reason to believe there is imminent harm or a 

violation of SMCRA or the applicable State program that will be addressed through the 

TDN process, OSMRE could ultimately conduct a Federal inspection. Thus, OSMRE 
This is an unofficial prepublication version of this document. OSMRE expects that 

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The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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concludes that there is not a sufficient reason to keep the concepts separate in this final 

rule.

Comment: Some commenters asserted that all citizen complaints should not be 

considered as requests for a Federal inspection. These commenters were concerned that 

doing so could lead to a significant increase in the number of Federal inspections, which 

could drain State resources as SRAs often participate jointly with OSMRE in Federal 

inspections. These commenters would prefer that OSMRE maintain its discretion in 

deciding whether a citizen complainant is “truly requesting an inspection.” These 

commenters also noted that the last sentence of § 842.12(a) as revised states that “[i]f the 

information supplied by the complainant results in a Federal inspection, the complainant 

will be offered the opportunity to accompany OSMRE on the Federal inspection.” These 

commenters indicated that the discretionary nature of “if” in that sentence appeared to

contradict OSMRE’s statements in the preamble to the proposed rule that all citizen 

complaints will be treated as requests for a Federal inspection.

Response: OSMRE disagrees and has concluded that it is appropriate to consider all 

citizen complaints as requests for a Federal inspection, even if the citizen does not 

specifically ask for a Federal inspection. If a citizen brings a possible violation to 

OSMRE’s attention, it is logical to assume that the citizen would also want OSMRE to 

conduct any corresponding and necessary Federal inspection. 

Contrary to the commenters’ assertions, OSMRE does not believe that treating all 

citizen complaints as a request for a Federal inspection will significantly increase the 

overall number of Federal inspections performed. While OSMRE will treat all citizen 

complaints as a request for Federal inspection, OSMRE will still evaluate that citizen 
This is an unofficial prepublication version of this document. OSMRE expects that 

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The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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complaint under 30 CFR 842.11(b)(1) to determine if it has reason to believe a violation 

exists and, if so, issue a TDN to the State. In a primacy State, a Federal inspection will 

only be conducted if OSMRE determines that the State’s response to a TDN was 

arbitrary, capricious, or an abuse of discretion. Because SRAs typically provide adequate 

responses to TDNs, we expect the number of Federal inspections to remain about the 

same as under the existing rule. 

Furthermore, pursuant to this final rule, the Department requires a citizen 

complaint or request for Federal inspection to follow the process in § 842.11(b); as a 

result, OSMRE retains two points of discretion: when determining whether it has reason 

to believe a violation exists before issuing a TDN, and determining whether an SRA’s 

TDN response is arbitrary, capricious, or an abuse of discretion. If OSMRE either decides 

that it does not have reason to believe a violation exists or that the State was not arbitrary

and capricious in its response, OSMRE will not conduct a Federal inspection; therefore, 

the regulation correctly includes “if” in the last sentence. 

Comment: One commenter noted that the proposed rule at § 842.12 states that citizen 

complaints under § 842.11(b) will be considered requests for a Federal inspection. The 

commenter noted further that, if the complaint results in a Federal inspection, the 

complainant will be offered the opportunity to accompany OSMRE on the inspection. 

The commenter asserted that the rule should be revised to clarify details about the

communication mechanism to the citizen, the time frame for OSMRE’s decision, 

OSMRE’s notification to the SRA, and opportunity to accompany OSMRE on the 

inspection.
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that may be relied upon.

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Response: The final rule does not change the communication mechanism between 

OSMRE and citizens related to participation on a Federal inspection, the time frames for 

OSMRE’s decision to conduct a Federal inspection, or affording the SRA an opportunity 

to accompany OSMRE. Under the TDN process, if OSMRE determines that the State did 

not take appropriate action or show good cause for not doing so in response to a TDN, 

OSMRE will notify the SRA according to existing 30 CFR 842.11(b)(1)(iii)(A). In 

accordance with OSMRE’s longstanding practice, the authorized representative may 

inform the SRA of a resulting Federal inspection. Likewise, if a Federal inspection occurs 

as a result of information provided by a citizen, OSMRE will notify and give the citizen 

the opportunity to accompany OSMRE on the inspection consistent with existing 30 CFR 

842.12(c). If an imminent harm situation exists, there is no requirement for OSMRE to 

notify the State of a Federal inspection. If OSMRE determines a need exists in the future 

for more specificity in procedures for citizen involvement or SRA notification, OSMRE 

will propose such changes.

Comment: One commenter requested clarification of what constitutes an SRA 

response that is arbitrary, capricious, or an abuse of discretion and at what levels of 

OSMRE these decisions are made.

Response: Regarding the “arbitrary, capricious, or an abuse of discretion” portion of 

the comment, the Department adopted that standard of review in 1988. 53 FR at 26732. 

At that time, the Department opted not to adopt the same deference standards that Federal 

courts accord to the Secretary in developing regulations. Id. at 26733. Instead, the 

Department decided that such language was unnecessary and “[c]oncerns about future 

application of those words will best be decided when specific fact situations have arisen 
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The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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and can be evaluated.” Id. The Department did state that “OSMRE [will] defer to a state’s 

interpretation of its own regulations, as long as that deference occurs within the 

framework of careful oversight, as provided by the statute. OSMRE will recognize a 

State’s interpretation of its own program as long as it is not inconsistent with the terms of 

the program approval or any prior state interpretation recognized by the Secretary and as 

long as the state interpretation is not arbitrary, capricious, or an abuse of discretion.” Id. 

at 26732.

Regarding the levels at which OSMRE makes decisions such as when “reason to 

believe” exists or whether a TDN response is arbitrary, capricious, or an abuse of 

discretion: these decisions are made in accordance with OSMRE’s internal management 

structure, but, generally, an OSMRE authorized representative, with the concurrence of 

the Field Office Director, makes the decision whether an SRA’s response to a TDN does 

or does not meet the standards for appropriate action or good cause. 

Comment: One commenter requested clarification as to whether the proposed rule is 

intended to limit Federal inspections to requests arising from citizen complaints. 

Response: This final rule does not limit Federal oversight inspections to those that 

occur because of citizen complaints. In general, under existing section 842.11(a)(1), 

OSMRE conducts oversight inspections of surface coal mining and reclamation 

operations “as necessary . . . [t]o monitor and evaluate the administration of approved 

State programs.” 

Comment: Similarly, one commenter sought clarification as to whether a citizenrequested Federal inspection would be counted toward the overall number of Federal 

oversight inspections agreed upon in the agencies’ performance agreements.
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Response: Under OSMRE’s Directive REG-8 (Oversight of State and Tribal 

Regulatory Programs, https://www.osmre.gov/sites/default/files/pdfs/directive997.pdf), 

when OSMRE conducts a Federal inspection because of a citizen complaint, that 

inspection will count toward OSMRE’s target number of oversight inspections for the 

relevant State or Tribe for the applicable evaluation year. OSMRE will retain this 

approach under this final rule. However, if necessary, OSMRE can exceed the target 

number of oversight inspections in an evaluation year. As mentioned in response to the 

prior comment, under section 842.11(a)(1), OSMRE will conduct any Federal inspections 

that are necessary, regardless of the overall amount.

E. 30 CFR 842.12(a)

Summary of final rule revisions to 30 CFR 842.12(a): As in the proposed rule, the 

final rule changes § 842.12(a) so that any person may request a Federal inspection under 

§ 842.11(b) by providing to an authorized representative a signed, written statement (or 

an oral report followed by a signed, written statement) setting forth information that, 

along with any other information the complainant chooses to provide, may give the 

authorized representative reason to believe that a violation, condition, or practice referred 

to in § 842.11(b)(1)(i) exists. Under the final rule, OSMRE will also consider “any other 

information the complainant chooses to provide.” In addition, OSMRE removed the 

phrase “readily available” and added that a reason to believe determination will be based 

upon information from a citizen complainant, information available in OSMRE files, and 

publicly available electronic information. Finally, OSMRE added new sentences to 

clarify that all citizen complaints under § 842.11(b) will be considered as requests for a 

Federal inspection, and that, if the information a citizen provides leads to a Federal 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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inspection, the citizen will be afforded the opportunity to accompany OSMRE on the 

inspection. 

Comment: One commenter opined that the term “violation” is used throughout 

SMCRA in the context of a permittee or operator.

Response: Although the meaning of this comment is unclear, as explained elsewhere, 

to the extent the commenter is suggesting that OSMRE should not send a TDN to an SRA 

for a permit defect, OSMRE disagrees with the comment. As explained above, OSMRE 

will issue a TDN whenever it has reason to believe that “any person” is in violation of 

SMCRA or the applicable State program, including not only permittees and operators, but 

also SRAs. 

Comment: One commenter asserted that imposition of an opportunity for the SRA to 

seek informal review and OSMRE’s completion of that review as a prerequisite to 

conducting a Federal inspection or issuing a Federal notice of violation following 

issuance of a TDN and a determination by OSMRE that the State did not take appropriate 

action (or show good cause for such failure) is nowhere provided for in SMCRA. The 

commenter also asserted that the provision has the effect of allowing extant violations to 

continue unabated, possibly ripening into avoidable imminent harm situations.

Response: For the reasons explained above, OSMRE declines to make any changes to 

the final rule based on this comment. Until OSMRE renders a decision on an SRA’s 

request for informal review, OSMRE will be vigilant in monitoring the underlying 

situation and make every effort to ensure that an underlying violation does not reach the 

point of imminent harm. 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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Comment: Some commenters agreed with OSMRE that a citizen should not have to 

first notify the State when a citizen is requesting a Federal inspection.

Response: As mentioned previously in section I.B of this preamble and in response to 

other comments, when requesting a Federal inspection, this final rule removes the 

requirement at § 842.12(a) for a citizen to notify an SRA of a possible violation. 

Comment: Some commenters supported continuation of the requirement for a 

complainant to contact the SRA before OSMRE.

Response: OSMRE explains above why it is removing the requirement for a citizen to 

notify the SRA when requesting a Federal inspection. The public will still be able to 

report possible violations directly to the SRA, and OSMRE encourages citizens to do so. 

The change in this final rule simply removes the requirement that a citizen notify the 

SRA prior to or simultaneously with OSMRE. As a general matter, OSMRE agrees with 

the commenters’ reasoning that it is typically better for the SRA, which has primary 

jurisdiction, to address a citizen complaint because the SRA can address them promptly, 

“without the delay the ten day notice procedure necessarily involves.” However, without 

the regulatory change, if a citizen opted not to contact the SRA first for whatever reason, 

then under the 2020 TDN Rule, OSMRE could have refused to consider information 

received from any person—i.e., the citizen—to determine whether it had reason to 

believe a violation of SMCRA exists. After review, OSMRE determined that such an 

outcome would be contrary to SMCRA section 521(a)(1), which requires OSMRE to 

consider “any information available” from “any person” about the existence of a possible 

violation and does not require that that person notify the SRA first. Therefore, excluding 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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the requirement for a citizen complainant to contact the SRA first hews more closely to 

the statutory requirements for public participation under 30 U.S.C. 1271(a)(1). 

Comment: One commenter recommended that a citizen’s failure to provide 

information for the basis of the person’s assertion should not result in rejecting a citizen 

complaint.

Response: Under this final rule, as explained in section I.B of this preamble and as 

stated in the preamble to the proposed rule, a citizen need not state the basis for the 

assertion that the SRA has not acted with respect to a possible violation. 

Comment: Some commenters asserted that OSMRE should not remove the 

requirement in the 2020 TDN Rule that a citizen provide a basis for their belief that the 

SRA failed to act. These commenters recognized that there was no mandate that this 

provision be included, but they stated that such information would be, at a minimum, 

useful for OSMRE to decide whether a possible violation exists. These commenters also 

contend that providing a simple explanation would not add a significant burden to the 

citizen complainant. Further, one commenter noted they are not aware of OSMRE not 

acting on a citizen complaint, even if the citizen did not provide such information. 

Response: As the commenter recognizes, there is no language in SMCRA that 

requires OSMRE to mandate that a citizen provide a reason why they think the SRA 

failed to act. Therefore, as with removing the requirement that the SRA be notified first, 

discussed above, removing this requirement will remove barriers to public participation 

and make the final rule adhere more closely to the requirements of SMCRA section 

521(a)(1). OSMRE does, however, recognize that it will consider all information 

provided by “any person” about the existence of a possible violation in determining 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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whether it has reason to believe a violation exists. Thus, OSMRE encourages, but does 

not require, citizens to provide it with all pertinent information about the possible 

violation, which could include information about the SRA’s prior response, if any. 

F. 30 CFR 733.5

Summary of final rule revisions to 30 CFR 733.5: The changes to 30 CFR 733.5 

involve amending the definitions of “action plan” and “State regulatory program issue.” 

As explained in the preamble to the proposed rule (88 FR at 24957), the revisions to the 

“action plan” definition in this final rule are non-substantive clarifying changes that 

enhance its readability. OSMRE changed “a detailed schedule” to “a detailed plan,” but 

this change is not substantive because the revised definition also provides that an action 

plan “includes a schedule . . . .” Both the existing and new definitions require an action 

plan to lead to the resolution of a State regulatory program issue.

OSMRE also revised the definition of “State regulatory program issue.” The revisions 

are chiefly for clarity but also include substantive changes to the definition. Consistent 

with the discussions of permit defects in the preamble to this final rule, OSMRE changed 

“could result in” to “may result from” to indicate that a State regulatory program issue 

may result from a State regulatory authority’s actions. In tandem with this change, the 

last sentence of the revised definition provides that “State regulatory program issues will 

be considered as possible violations and will initially proceed, and may be resolved, 

under part 842 of this chapter.” This language makes clear that an SRA’s actions could 

constitute a possible violation for which OSMRE would issue a TDN. See discussions of 

permit defects above and at 88 FR at 24951-24952 and 24957.
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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Comment: See section III.E. (“Any Person” Who Can Be in Violation of SMCRA) for 

comment summary and response.

G. 30 CFR 733.12(a)

Summary of final rule revisions to 30 CFR 733.12(a): Without changing the meaning, 

the final rule removes “in order” before “to ensure” as it is unnecessary. In addition, the 

final rule changes “escalate into” to “become” to be more concise. In existing 

§ 733.12(a)(1), the final rule adds “including a citizen complainant” at the end of the 

sentence to emphasize that a citizen complainant can be the source of information that 

leads OSMRE to identify a State regulatory program issue. In existing § 733.12(a)(2), the 

final rule adds “initiate procedures to” before “substitute Federal enforcement” and adds 

“in accordance with § 733.13” at the end of the sentence to replace “as provided in this 

part.” The changes to the last sentence indicate that there is an established process for 

substituting Federal enforcement or withdrawing approval of a State regulatory program. 

Comment: See Section III.H (Minor Text Changes and Conforming Edits) for 

comment summary and response

H. 30 CFR 733.12(b)

Summary of final rule revisions to 30 CFR 733.12(b): The final rule modifies existing 

§ 733.12(b) to require OSMRE to develop and approve an action plan for a State 

regulatory program issue, along with a specific time frame for completing the identified 

actions. The final rule revises the first sentence of § 733.12(b) to read: “For each State 

regulatory program issue, the Director or their designee, in consultation with the State 

regulatory authority, will develop and approve an action plan within 60 days of 

identification of a State regulatory program issue.” Additionally, the final rule adds a new 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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second sentence that would allow OSMRE and the relevant SRA to “identify [within 10 

business days] interim remedial measures that may abate the existing condition or issue.” 

The final rule removes the existing language that allows OSMRE to “employ any number 

of compliance strategies” and replaces it with the requirement for OSMRE to develop 

and approve an action plan for all State regulatory program issues. In addition, the final 

rule removes the existing second sentence, which includes the requirement for OSMRE 

to develop and institute an action plan only if OSMRE does not expect the SRA to 

resolve the State regulatory program issue within 180 days after identification or that it is 

likely to result in a violation of the approved State program. Instead, the final rule 

includes a 60-day period for development and approval of an action plan for all State 

regulatory program issues. These changes also emphasize that State regulatory program 

issues will start as possible violations under 30 CFR part 842, which is consistent with 

the revised definition of State regulatory program issue at § 733.5. Finally, the revised 

provision includes the 10-day interim remedial measure language. 

Comment: Some commenters supported the added language to § 733.12(b) that 

requires OSMRE to develop action plans in consultation with SRAs.

Response: OSMRE appreciates the support for this aspect of the rule. OSMRE 

recognizes that it is vitally important for an SRA to have input into an action plan that is 

developed to resolve a violation because the States primarily implement SMCRA on nonFederal, non-Indian lands within their borders, subject to OSMRE’s oversight. 

Comment: Some commenters asserted that action plan time frames are too short, 

especially if the SRA needs to develop regulations or seek legislative changes from the 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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State legislature, which may have short legislative sessions, or if there is litigation that 

affects the resolution of the State regulatory program issue. 

Response: OSMRE disagrees. OSMRE thoroughly considered these comments 

and concludes that the time frames in final § 733.12(b) are sufficient and appropriate for 

what the action plan requires. As explained in section I.B of this preamble, OSMRE, in 

general, does not expect that final resolution of an issue could exceed one year. See also

88 FR at 24950. Instead, when developing an action plan, OSMRE and the SRA must 

give careful consideration to objectives that can be completed within the specified time

frame, such as proposing a State program amendment (rather than having a State program 

amendment approved). 

Further, regarding the 10 days for interim measures, identification of these 

measures is not mandatory. The final regulatory language uses the phrase “may identify 

interim measures that may abate the existing condition or issue.” (Emphasis added.) If 10 

days is not sufficient or feasible, OSMRE and the SRA will not need to develop interim 

measures. The provision serves the purpose of highlighting and emphasizing the utility of 

identifying interim measures that may abate a violation as soon as possible. Even if these 

measures are not identified within 10 days, nothing prevents an SRA from later

identifying such measures at any time to ameliorate or resolve an underlying violation or 

issue. 

OSMRE also concludes that 60 days is adequate for development of an action 

plan, with the understanding that development and approval of an action plan does not 

mean that any of the requirements of the action plan need to be completed within 60 

days. 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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Comment: One commenter noted that there is no provision for an SRA appeal of an

OSMRE-developed action plan.

Response: Under this final rule, OSMRE contemplates that development of an action 

plan will be a joint effort between OSMRE and an SRA. However, under final 

§ 773.12(b)(4), if the SRA does not cooperate in developing the action plan, OSMRE will 

develop, and require the State to comply with, the action plan. The Federal regulations 

provide that any written decision of the Director or their designee may be appealed to the 

Interior Board of Land Appeals if the decision specifically grants such an appeal. 43 CFR 

4.1281. Thus, it will be up to the OSMRE Director or designated official to make a caseby-case determination if the action plan warrants IBLA appeal rights. 

Comment: One commenter noted there are no OSMRE time frames required during 

its action plan development, and violations could remain unabated while OSMRE 

develops or considers an action plan.

Response: SMCRA does not have concrete time frames for OSMRE to determine 

whether it has reason to believe a violation exists. In like manner, this final rule does not 

create time frames for OSMRE to determine that there is a State regulatory program 

issue. However, the non-mandatory 10-day period for OSMRE and the SRA to develop 

interim measures in this final rule demonstrates OSMRE’s commitment to addressing onthe-ground issues quickly even while the action plan is being developed. OSMRE will, of 

course, continue to monitor the underlying situation and make every effort to ensure that 

an underlying violation does not become an imminent harm if it is being addressed 

through an action plan. 

I. 30 CFR 733.12(b)(1) Through (4)
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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Summary of final rule revisions to 30 CFR 733.12 (b)(1) through (4): In the first 

sentence of existing 30 CFR 733.12(b)(1), the final rule repeats the word “identify” 

before “an effective mechanism for timely correction” for clarity. This is a nonsubstantive change. The final rule also modifies § 733.12(b)(1) by adding a new second 

sentence that would require the SRA to “complete all identified actions contained within 

an action plan within 365 days from when OSMRE sends the action plan to the relevant 

State regulatory authority.” The 365-day requirement is discussed in section I.B of this 

preamble and in response to other comments in this section. OSMRE also finalized § 

733.12(b)(2) as proposed by adding “upon approval of the action plan” to the end of the 

existing section. This change clarifies that an approved action plan will identify any 

remedial measures that an SRA must take immediately after the action plan is approved.

Additional non-substantive changes to 30 CFR 733.12(b)(3) that were presented in the 

proposed rule are included in this final rule.

Finally, OSMRE introduced in the proposed rule a new paragraph 733.12(b)(4) to 

enable OSMRE to develop and approve an action plan unilaterally if the SRA does not 

cooperate in a manner sufficient to develop such a plan. OSMRE would develop the 

action plan in accordance with the requirements of paragraphs 733.12(b)(1) through (3) 

and require the State to comply with the action plan. This will ensure timely resolution of 

violations. Further discussion of the changes to existing 30 CFR 733.12(b) can be found 

in the preamble to the proposed rule, 88 FR at 24958.

Comment: One commenter asserted that the proposed rule seeks to treat State 

regulatory program issues as potential violations and resolved under part 842 of this 

chapter, which aligns with SMCRA and should be finalized.
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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Response: As discussed, requiring OSMRE to issue TDNs for 30 CFR part 733 State 

regulatory program issues (i.e., permit defects) more closely aligns with the text of

SMCRA and congressional intent regarding TDNs. Consistent with the revised definition 

of State regulatory program issue at final paragraph 733.5, OSMRE notes that State 

regulatory program issues will initially be considered as possible violations and will 

initially proceed, and may be resolved, under 30 CFR part 842. However, OSMRE also 

notes that while it will consider all possible violations initially under part 842, there may 

be instances when it makes more sense to handle certain possible violations solely

through the part 733 action plan process rather than through the TDN process. Even in 

these instances, the new action plan time frames and requirements in § 733.12(b) will 

ensure that these situations do not take any longer than the TDN process, which will lead 

to timely resolution of underlying issues.

Comment: One commenter noted that the proposed rule acknowledged the need to 

address programmatic issues with SMCRA implementation by the State regulator through 

Part 733, while also ensuring timely and direct enforcement of permit-related violations.

Response: OSMRE agrees with the commenter that the State regulatory authority is 

responsible for addressing violations and State regulatory program issues. As 

acknowledged by the commenter, SMCRA provides mechanisms to address violations 

and State regulatory program issues. SMCRA section 521(a), as implemented at 30 CFR

842.11, is intended to address all possible violations of SMCRA or a State regulatory 

program. SMCRA 521(b), as implemented at 30 CFR 733.12, is intended to address 

issues that arise from a State’s implementation of its approved SMCRA program. In this

final rule, all possible violations will initially be considered under 30 CFR part 842. 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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Violations that indicate problems with SMCRA implementation may be addressed under 

the TDN process if the issue is limited in scope and can be successfully resolved within 

the confines of the TDN process. However, OSMRE believes most systemic issues will 

be addressed through a State regulatory authority program issue and addressed with a 

corrective action plan under 30 CFR 733.12. 

Comment: One commenter stated that it is not clear how the revisions prevent 

duplication and confusion when OSMRE receives a citizen complaint related to a State 

regulatory program issue.

Response: When OSMRE receives a citizen complaint, OSMRE will review the 

information contained in the complaint, information in its files at the time the complaint 

is received, and publicly available electronic information to determine if OSMRE has 

reason to believe a violation exists. If OSMRE has reason to believe a violation exists, it 

will communicate this possible violation to the SRA via a TDN. There is no redundancy

in this process. If the State is already aware of the issue, it can respond to the TDN that 

there is no violation of the State program, the State has taken appropriate action to abate 

the issue, the State is in the process of developing an abatement plan, or the State needs 

additional time to fully consider if the issue is a violation. And, short of an imminent 

harm scenario, OSMRE would only conduct a Federal inspection and take any 

corresponding enforcement action if the State does not respond in ten days or its response 

to the TDN is arbitrary, capricious, or an abuse of discretion. 

Comment: Some commenters asserted that the State regulatory program issue process 

identified in the TDN rule will result in Federal assumption and/or control when a State 

regulatory program issue is identified.
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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Response: OSMRE disagrees with these commenters. The only way Federal 

assumption or control of a State program can occur is through the procedures at existing 

30 CFR 733.13, which are not a subject of this final rule. Federal assumption of SMCRA 

jurisdiction cannot occur through the State regulatory program issue process outlined in

this final rule at § 733.12. Issuing a TDN in the first instance for a State regulatory 

program issue and allowing a Part 733 action plan to constitute “good cause” in response 

to the TDN is consistent with SMCRA and State primacy.

Comment: One commenter stated that the regulatory text demonstrating deference to 

States should be reflective of SMCRA regarding Federal inspections. 

Response: As OSMRE understands the comment, the commenter claims that OSMRE 

should not intervene in SRA inspections. If OSMRE has reason to believe a violation 

exists, OSMRE will send a TDN to the SRA about the possible violation. OSMRE will 

conduct a Federal inspection only as directed in SMCRA and the implementing 

regulations at 30 CFR 842.11 if the SRA does not respond in ten days or its response to 

the TDN is arbitrary, capricious, or an abuse of its discretion. As previously noted, the 

arbitrary or capricious standard affords a high level of deference to an SRA, and it is fully 

consistent with SMCRA. 

J. 30 CFR 733.12(c)

Summary of final rule revisions to 30 CFR 733.12(c): The final rule includes nonsubstantive and grammatical changes to existing § 733.12(c) for clarity. These revisions 

do not change the meaning of the provision.

Comment: See section III.H. (Minor Text Changes and Conforming Edits) for a 

general comment summary and response.
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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K. 30 CFR 733.12(d)

Summary of final rule revisions to 30 CFR 733.12(d): As in the proposed rule, in the 

final rule at § 733.12(d), OSMRE inserted the word “additional” before the phrase

“appropriate oversight enforcement action” to indicate that any oversight enforcement 

action that OSMRE takes is in addition to an initial TDN or identification of a State 

regulatory program issue. The final rule ends the sentence there and deletes the last 

clause of the existing language. The revised provision reads: “Nothing in this section 

prevents a State regulatory authority from taking direct enforcement action in accordance 

with its State regulatory program or OSMRE from taking additional appropriate oversight 

enforcement action.” OSMRE deleted the remainder of the sentence because, as 

explained in section I.B of this preamble, under this final rule, it will no longer be the 

case that a possible violation could proceed initially as a State regulatory program issue 

that could subsequently transform into a possible violation that warrants the issuance of a 

TDN. Instead, under this final rule, OSMRE will consider all possible violations initially

under 30 CFR part 842, which may result in the issuance of a TDN. 

Comment: None.

V. Severability of Provisions in this Final Rule

The changes to the TDN and Federal inspection provisions at 30 CFR part 842 are 

intended to be severable from the 30 CFR part 733 provisions for State regulatory 

program issues and associated action plans. Thus, if any of the provisions of this final 

rule are stayed or invalidated by a reviewing court, the other provisions could operate 

independently and would be applicable to the relevant provisions of the existing 

regulations. For example, if a court were to invalidate any portion of the changes to part 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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842, the provisions at part 733 could still operate independently. Conversely, if a court 

were to invalidate any of the provisions at part 733, the provisions at part 842 could still 

operate independently. Likewise, changes to specific sections within these parts are 

intended to be severable from the changes to other sections.

VI. Procedural Matters and Required Determinations

Executive Order 12630—Governmental Actions and Interference with Constitutionally 

Protected Property Rights

This rule does not result in a taking of private property or otherwise have 

regulatory takings implications under Executive Order 12630. The rule primarily 

concerns Federal oversight of approved State programs and enforcement when permittees 

and operators are not complying with the law. Therefore, the rule will not result in private 

property being taken for public use without just compensation. A takings implication 

assessment is therefore not required.

Executive Order 12866—Regulatory Planning and Review, Executive Order 13563—

Improving Regulation and Regulatory Review, and Executive Order 14094 –

Modernizing Regulatory Review

Executive Order 12866, as amended by Executive Order 14094, provides that the 

Office of Information and Regulatory Affairs (OIRA) in the Office of Management and 

Budget (OMB) will review all significant rules. OIRA has determined that this rule is not 

significant under Executive Order 12866, as amended. 

Executive Order 13563 reaffirms the principles of Executive Order 12866 while 

calling for improvements in the nation’s regulatory system to promote predictability, 

reduce uncertainty, and use the best, most innovative, and least burdensome tools for 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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achieving regulatory ends. The Executive order directs agencies to consider regulatory 

approaches that reduce burdens and maintain flexibility and freedom of choice for the 

public where these approaches are relevant, feasible, and consistent with regulatory 

objectives. Executive Order 13563 emphasizes further that agencies must base 

regulations on the best available science and that the rulemaking process must allow for 

public participation and an open exchange of ideas. OSMRE has developed this final rule 

in a manner consistent with these requirements.

Executive Order 12988—Civil Justice Reform

This rule complies with the requirements of Executive Order 12988. Among other 

things, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to 

eliminate errors and ambiguity; and be written to minimize litigation; 

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in 

clear language and contain clear legal standards.

Executive Order 13132—Federalism

Under the criteria in section 1 of Executive Order 13132, this final rule does not 

have sufficient federalism implications to warrant the preparation of a federalism 

summary impact statement. While revising the existing regulations governing the TDN 

process would have a direct effect on the States and the Federal government’s 

relationship with the States, this effect would not be significant, as it would neither 

impose substantial unreimbursed compliance costs on States nor preempt State law. 

Furthermore, this final rule does not have a significant effect on the distribution of power 

and responsibilities among the various levels of government. The final rule would not 
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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significantly increase burdens on SRAs to address and resolve underlying issues. As 

such, a federalism summary impact statement is not required.

Executive Order 13175—Consultation and Coordination with Indian Tribal Governments

The Department of the Interior strives to strengthen its government-togovernment relationship with Tribes through a commitment to consultation with Tribes 

and recognition of their right to self-governance and Tribal sovereignty. OSMRE has 

evaluated this rule under the Department’s consultation policy and under the criteria in 

Executive Order 13175 and determined that it does not have substantial direct effects on 

Federally recognized Tribes and that consultation under the Department’s Tribal 

consultation policy is not required. Currently, no Tribes have achieved primacy. Thus, 

this rule will not impact the regulation of surface coal mining operations on Tribal lands. 

However, OSMRE coordinated with Tribes to inform them of the rulemaking. OSMRE 

coordinated with the Navajo Nation, Crow Tribe of Montana, Hopi Tribe of Arizona, 

Choctaw Nation of Oklahoma, Muscogee (Creek) Nation, and Cherokee Nation and did 

not receive comments or concerns. None of the Tribes requested consultation.

Executive Order 13211—Actions Concerning Regulations That Significantly Affect 

Energy Supply, Distribution, or Use

This rule is not a significant energy action under the definition in Executive Order 

13211. A Statement of Energy Effects is not required.
This is an unofficial prepublication version of this document. OSMRE expects that 

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The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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Executive Order 13045—Protection of Children from Environmental Health Risks and 

Safety Risks

This final rule is not subject to Executive Order 13045 because it does not meet 

the criteria of Executive Order 12866 section 3(f)(1), as amended, and this action does 

not concern environmental health or safety risks disproportionately affecting children.

National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act 

(NTTAA), 15 U.S.C. 3701 et seq., directs Federal agencies to use voluntary consensus 

standards in their regulatory activities unless to do so would be inconsistent with 

applicable law or otherwise impractical. OMB Circular A-119 at page 14. This final rule 

is not subject to the requirements of section 12(d) of the NTTAA because application of 

those requirements would be inconsistent with SMCRA and is not applicable to this final

rule.

National Environmental Policy Act

This rule does not constitute a major Federal action significantly affecting the 

quality of the human environment. A detailed statement under the National 

Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., is not required 

because the rule is covered by a categorical exclusion. Specifically, OSMRE has

determined that the final rule is administrative or procedural in nature in accordance with 

the Department of the Interior’s NEPA regulations at 43 CFR 46.210(i). OSMRE has also 

determined that the final rule does not involve any of the extraordinary circumstances 

listed in 43 CFR 46.215 that would require further analysis under NEPA.

Paperwork Reduction Act
This is an unofficial prepublication version of this document. OSMRE expects that 

the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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This rule does not impose any new information collection burden under the 

Paperwork Reduction Act. OMB has previously approved the information collection 

activities contained in the existing regulations and has assigned OMB control number 

1029-0118. This rule does not impose an information collection burden because OSMRE 

is not making any changes to the information collection requirements. OSMRE estimates 

that the number of burden hours associated with TDN processing will stay the same as 

what is currently authorized by OMB control number 1029-0118.

Regulatory Flexibility Act

OSMRE certifies that this rule will not have a significant economic impact on a 

substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 

seq.). OSMRE evaluated the impact of the regulatory changes and determined the rule 

changes would not induce, cause, or create any unnecessary burdens on the public, SRAs, 

or small businesses; would not discourage innovation or entrepreneurial enterprises; and 

would be consistent with SMCRA, from which the regulations draw their implementing 

authority. 

Congressional Review Act

The Congressional Review Act (5 U.S.C. 804(2)) requires certain procedures for 

“any rule that the Administrator of the Office of Information and Regulatory Affairs of 

the Office of Management and Budget finds has resulted in or is likely to result in—

a. an annual effect on the economy of $100 million or more; 

b. a major increase in costs or prices for consumers, individual industries, Federal, 

State, or local government agencies, or geographic regions; 
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c. significant adverse effects on competition, employment, investment, productivity, 

innovation, or the ability of United States-based enterprises to compete with foreignbased enterprises in domestic and export markets. 

OIRA has determined that this rule does not meet those criteria. 

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or Tribal 

governments, or the private sector, of $100 million or more in any given year. The rule 

does not have a significant or unique effect on State, local, or Tribal governments, or the 

private sector. A statement containing the information required by the Unfunded 

Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects

30 CFR Part 733

Intergovernmental relations, Surface mining, Underground mining.

30 CFR Part 842

Law enforcement, Surface mining, Underground mining.

Delegation of Signing Authority

The action taken herein is pursuant to an existing delegation of authority.

Steven H. Feldgus,

Principal Deputy Assistant Secretary, 

Land and Minerals Management.

For the reasons set out in the preamble, the Department of the Interior, acting through 

OSMRE, amends 30 CFR parts 733 and 842 as follows:
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PART 733—EARLY IDENTIFICATION OF CORRECTIVE ACTION, 

MAINTENANCE OF STATE PROGRAMS, PROCEDURES FOR 

SUBSTITUTING FEDERAL ENFORCEMENT OF STATE PROGRAMS, AND 

WITHDRAWING APPROVAL OF STATE PROGRAMS

1. The authority citation for part 733 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

2. Revise § 733.5 to read as follows:

§ 733.5 Definitions.

As used in this part, the following terms have the specified meanings:

Action plan means a detailed plan that the Office of Surface Mining Reclamation and 

Enforcement (OSMRE) prepares to resolve a State regulatory program issue identified during 

OSMRE’s oversight of a State regulatory program and that includes a schedule that contains 

specific requirements that a State regulatory authority must achieve in a timely manner.

State regulatory program issue means an issue OSMRE identifies during 

oversight of a State or Tribal regulatory program that may result from a State regulatory 

authority’s implementation, administration, enforcement, or maintenance of all or any 

portion of its State regulatory program that is not consistent with the basis for OSMRE’s 

approval of the State program. This may include, but is not limited to, instances when a 

State regulatory authority has not adopted and implemented program amendments that 

are required under § 732.17 and subchapter T of this title, and issues related to the 

requirement in section 510(b) of the Act that a State regulatory authority must not 

approve a permit or revision to a permit, unless the State regulatory authority finds that 
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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the application is accurate and complete and that the application is in compliance with all 

requirements of the Act and the State regulatory program. State regulatory program 

issues will be considered as possible violations and will initially proceed, and may be 

resolved, under part 842 of this chapter.

3. Revise § 733.12 to read as follows:

§ 733.12 Early identification and corrective action to address State regulatory 

program issues.

(a) When the Director identifies a State regulatory program issue, he or she should 

take action to make sure the identified State regulatory program issue is corrected as soon 

as possible to ensure that it does not become an issue that would give the Director reason 

to believe that the State regulatory authority is not effectively implementing, 

administering, enforcing, or maintaining all or a portion of its State regulatory program.

(1) The Director may become aware of State regulatory program issues through 

oversight of State regulatory programs or as a result of information received from any 

source, including a citizen complainant.

(2) If the Director concludes that the State regulatory authority is not effectively 

implementing, administering, enforcing, or maintaining all or a portion of its State 

regulatory program, the Director may initiate procedures to substitute Federal 

enforcement of a State regulatory program or withdraw approval of a State regulatory 

program, in accordance with § 733.13.
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

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(b) For each State regulatory program issue, the Director or their designee, in 

consultation with the State regulatory authority, will develop and approve an action plan 

within 60 days of identification of a State regulatory program issue. Within 10 business 

days of OSMRE’s determination that a State regulatory program issue exists, OSMRE 

and the State regulatory authority may identify interim remedial measures that may abate 

the existing condition or issue. The requirements of an action plan are as follows: 

(1) An action plan will be written with specificity to identify the State regulatory 

program issue and identify an effective mechanism for timely correction. The State 

regulatory authority must complete all identified actions contained within an action plan 

within 365 days from when OSMRE sends the action plan to the relevant State regulatory 

authority.

(2) An action plan will identify any necessary technical assistance or other 

assistance that the Director or his or her designee can provide and remedial measures that 

a State regulatory authority must take immediately upon approval of the action plan.

(3) An OSMRE approved action plan must also include:

(i) An action plan identification number; 

(ii) A concise title and description of the State regulatory program issue;

(iii) Specific criteria for establishing when complete resolution of the violation 

will be achieved;

(iv) Specific and orderly sequence of actions the State regulatory authority must 

take to remedy the problem;
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(v) A detailed schedule for completion of each action in the sequence; and

(vi) A clear explanation that if, upon completion of the action plan, the State 

regulatory program issue is not corrected, the provisions of § 733.13 may be initiated.

(4) Once all items in paragraphs (b)(1) through (3) of this section are satisfactorily 

addressed, OSMRE will approve the action plan. If the State regulatory authority does 

not cooperate with OSMRE in developing the action plan, OSMRE will develop the 

action plan within the guidelines listed in paragraphs (b)(1) through (3) of this section 

and require the State regulatory authority to comply with the action plan.

(c) All identified State regulatory program issues, and any associated action plans, 

must be tracked and reported in the applicable State regulatory authority’s Annual 

Evaluation Report. Each State regulatory authority Annual Evaluation Report will be 

accessible through OSMRE’s website and at the relevant OSMRE office. Within each 

report, benchmarks identifying progress related to resolution of the State regulatory 

program issue must be documented.

(d) Nothing in this section prevents a State regulatory authority from taking direct 

enforcement action in accordance with its State regulatory program or OSMRE from 

taking additional appropriate oversight enforcement action.

PART 842—FEDERAL INSPECTIONS AND MONITORING

4. The authority citation for part 842 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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5. Add § 842.5 to read as follows:

§ 842.5 Definitions.

As used in this part, the following terms have the specified meanings:

Citizen complaint means any information received from any person notifying the 

Office of Surface Mining Reclamation and Enforcement (OSMRE) of a possible 

violation of the Act, this chapter, the applicable State regulatory program, or any 

condition of a permit or an exploration approval. This information must be provided in 

writing (or orally, followed up in writing).

Ten-day notice means a communication mechanism that OSMRE uses, in nonimminent harm situations, to notify a State regulatory authority under 

§§ 842.11(b)(l)(ii)(B)(1) and 843.12(a)(2) when an OSMRE authorized representative 

has reason to believe that any permittee and/or operator is in violation of the Act, this 

chapter, the applicable State regulatory program, or any condition of a permit or an 

exploration approval or when, on the basis of a Federal inspection, OSMRE determines 

that a person is in violation of the Act, this chapter, the applicable State regulatory 

program, or any condition of a permit or an exploration approval and OSMRE has not 

issued a previous ten-day notice for the same violation.

6. Amend § 842.11 by:

a. Revising paragraphs (b)(1)(i), (b)(1)(ii)(B)(1) and (3), and 

(b)(1)(ii)(B)(4)(ii);
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b. Redesignating paragraphs (b)(1)(ii)(B)(4)(iii) through (v) as paragraphs 

(b)(1)(ii)(B)(4)(iv) through (vi) respectively;

c. Adding a new paragraph (b)(1)(ii)(B)(4)(iii); and 

d. Revising paragraph (b)(2).

The revisions and additions read as follows:

§ 842.11 Federal inspections and monitoring.

* * * * *

(b)(1) * * *

(i) When the authorized representative has reason to believe on the basis of 

information received from a citizen complainant, information available in OSMRE files 

at the time that OSMRE is notified of the possible violation (other than information 

resulting from a previous Federal inspection), and publicly available electronic 

information, that there exists a violation of the Act, this chapter, the applicable State 

regulatory program, or any condition of a permit or an exploration approval, or that there 

exists any condition, practice, or violation that creates an imminent danger to the health 

or safety of the public or is causing or could reasonably be expected to cause a 

significant, imminent environmental harm to land, air, or water resources; and

(ii) * * *

(B)(1) The authorized representative has notified the State regulatory authority of 

the possible violation and more than ten days have passed since notification, and the State 
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

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regulatory authority has not taken appropriate action to cause the violation to be corrected 

or to show good cause for not doing so, or the State regulatory authority has not provided 

the authorized representative with a response. After receiving a response from the State 

regulatory authority, but before a Federal inspection, the authorized representative will 

determine in writing whether the standards for appropriate action or good cause have 

been satisfied. A State regulatory authority’s failure to respond within ten days does not 

prevent the authorized representative from making a determination, and will constitute a 

waiver of the State regulatory authority’s right to request review under paragraph 

(b)(1)(iii) of this section. Where appropriate, OSMRE may issue a single ten-day notice 

for substantively similar possible violations found on two or more permits, including two 

or more substantively similar possible violations identified in one or more citizen 

complaints.

* * *

(3) Appropriate action includes enforcement or other action authorized under the 

approved State regulatory program to cause the violation to be corrected. 

(4) * * *

(ii) The State regulatory authority has initiated an investigation into a possible 

violation and has determined that it requires an additional amount of time to determine 

whether a violation exists. The State regulatory authority may request up to 30 additional 

days to complete its investigation of the issue; in complex situations, the State regulatory 

authority may request up to an additional 60 days to complete the investigation. In all 

circumstances, an extension request must be supported by an explanation of the need for, 
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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and the measures being undertaken that justify, an extension, along with any relevant 

documentation. The authorized representative has discretion to approve the requested 

time extension or establish the length of time that the State regulatory authority has to 

complete its investigation. The sum total of additional time for any one possible violation 

must not exceed 90 days. At the conclusion of the specified additional time, the 

authorized representative will re-evaluate the State regulatory authority’s response, 

including any additional information provided;

(iii) OSMRE has identified substantively similar possible violations on separate 

permits and considers the possible violations as a single State regulatory program issue 

addressed through § 733.12. Previously identified possible violations that were the 

subject of ten-day notices or subsequent, substantively similar violations may be included 

in the same State regulatory program issue;

* * * * *

(b)(2) An authorized representative will have reason to believe that a violation, 

condition, or practice referred to in paragraph (b)(1)(i) of this section exists if the facts 

that a complainant alleges, or facts that are otherwise known to the authorized 

representative, support the existence of a possible violation, condition, or practice. In 

making this determination, the authorized representative will consider information from a 

citizen complainant, information available in OSMRE files at the time that OSMRE is 

notified of the possible violation, and publicly available electronic information. All 

citizen complaints will be considered as requests for a Federal inspection under § 842.12. 

If the information supplied by the complainant results in a Federal inspection, the 
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the same or a substantially similar document will be posted in the Federal Register. 

The final rule published in the Federal Register is the only version of the document 

that may be relied upon.

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complainant will be offered the opportunity to accompany OSMRE on the Federal 

inspection.

* * * * *

7. Revise § 842.12(a) to read as follows:

§ 842.12 Requests for Federal inspections.

(a) Any person may request a Federal inspection under § 842.11(b) by providing 

to an authorized representative a signed, written statement (or an oral report followed by 

a signed, written statement) setting forth information that, along with any other 

information the complainant chooses to provide, may give the authorized representative 

reason to believe that a violation, condition, or practice referred to in § 842.11(b)(1)(i) 

exists. In making this determination, the authorized representative will consider 

information from a citizen complainant, information available in OSMRE files at the time 

that OSMRE receives the request for a Federal inspection, and publicly available 

electronic information. The statement must also set forth a phone number, address, and, if 

available, an email address where the person can be contacted. All citizen complaints 

under § 842.11(b) will be considered as requests for a Federal inspection. If the 

information supplied by the complainant results in a Federal inspection, the complainant 

will be offered the opportunity to accompany OSMRE on the Federal inspection.

* * * * *