FEDERAL REGISTER: 48 FR 6912 (February 16, 1983)

DEPARTMENT OF THE INTERIOR

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

30 CFR Parts 700, 701, 740, 741, 742, 743, 744, 745 and 746

Federal Lands Program

ACTION: Final rules. 

SUMMARY: The Office of Surface Mining (OSM) is amending its rules governing the Federal lands program which set 

forth the requirements for surface coal mining and reclamation operations on Federal lands. The final rules will more 

clearly delineate the roles of the Federal government and the States in the regulation of surface coal mining and 

reclamation operations on Federal lands. Under the final rules, States will be able to assume greater responsibility for 

administering the requirements of the Surface Mining Control and Reclamation Act of 1977 on Federal lands. The final 

rules provide a revised process for review and approval of mining plans by the Secretary, and require mining plan 

approval only where leased Federal coal is involved. 

EFFECTIVE DATE: March 18, 1983. 

FOR FURTHER INFORMATION CONTACT: H. Leonard Richeson, Federal Lands Specialist, Branch of Regulatory 

Programs, Office of Surface Mining, U.S. Department of the Interior, 1951 Constitution Avenue, NW., Washington, 

D.C. 20240. Telephone: (202) 343-5866. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion and Disposition of Comments and Rules Adopted 

III. Procedural Matters 

 

I. BACKGROUND 

 Section 523(a) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act), 30 U.S.C. 1201, et 

seq., requires the Secretary to promulgate and implement a Federal lands program applicable to all surface coal mining 

and reclamation operations taking place pursuant to Federal law on Federal lands. Section 523(a) also provides that the 

Federal lands program must (1) incorporate all of the requirements of the Act, (2) incorporate, at a minimum, the 

requirements of a State program in a State with a State program approved pursuant to section 503 of the Act, and (3) 

consider the diverse physical, climatological and other unique characteristics of the Federal lands in question. Under 

section 523(c) of the Act, a State with an approved State program may enter into a cooperative agreement with the 

Secretary under which the State would assume responsibility for regulation of surface coal mining and reclamation 

operations on Federal lands within the State. Sections 523(a) and 523(c) of the Act provide, however, that the Secretary 

may not delegate to the State, among other things, his responsibilities to approve mining plans on Federal lands and to 

designate Federal lands unsuitable for surface coal mining pursuant to section 522 of the Act. 

 The Secretary implemented the initial phase of the Federal lands program by promulgating 30 CFR Chapter VII, 

Subchapter B, Parts 710-725, (42 FR 6277, December 13, 1977) and by adopting amendments to 30 CFR Part 211 (43 

FR 37181, August 22, 1978) to incorporate the requirements of sections 502 and 523 of the Act. On March 13, 1979, 

the Secretary promulgated the permanent phase of the Federal lands program, 30 CFR Chapter VII, Subchapter D. 44 

FR 15332-15341. On December 31, 1979, in response to a petition by the State of Montana, OSM postponed the 

effective date of the permanent phase of the Federal lands program until the date of approval of a State program or 

implementation of a Federal program for a State. 44 FR 7740. 

 Pursuant to Executive Order 12291, every Federal agency is required, within applicable statutory constraints, to 

choose regulatory goals that maximize benefits to society and to select the most efficient and effective means to achieve 

these goals. In addition, one of the Secretary's goals is to eliminate rules which are excessive, burdensome or 

counterproductive. To accomplish this regulatory reform and to assure that the Executive Order is carried out with 
respect to regulations governing surface coal mining and reclamation operations on Federal lands, OSM published on 

June 9, 1982, proposed rules to amend 30 CFR Chapter VII, Subchapter D, the Federal Lands Program. 47 FR 25092. 

 OSM has sought to provide early and meaningful public participation during its regulatory review. To this end, 

OSM has met with and/or received comments and recommendations from the public, representatives of coal mining 

States that have or will have surface coal mining on Federal lands, industry and environmental organizations. 

Comments were initially invited for 30 days ending on July 9, 1982. The comment period was extended for 14 

additional days ending on July 23, 1982, to provide more time for commenters who indicated that additional time was 

needed to adequately review and comment on the proposed rules. 47 FR 28706 (July 1, 1982). The comment period 

was reopened on August 2, 1982, for 14 days ending on August 16, 1982, because several commenters requested that 

they be given an opportunity to review and comment on those provisions of the proposed rules that interrelated with 

the final revised 30 CFR Part 211 rules published by the Department on July 30, 1982. See 47 FR 33714. 

 All substantive comments were carefully considered in the rulemaking process. These comments are addressed in 

the following preamble. Two hearings were scheduled to receive testimony on the proposed rules. However, as 

provided in the proposed rules, both were canceled because no persons indicated an intention to testify at either public 

hearing by 5 days before the appropriate hearing date. 

 All comments received as well as summaries of meetings held are available for inspection in the Administrative 

Record (R&I -- 04), Room 5315, 1100 L Street, NW., Washington, D.C. 

 

II. DISCUSSION AND DISPOSITION OF COMMENTS AND RULES ADOPTED 

 

A. GENERAL COMMENTS 

 In OSM's proposed rules, several conceptual changes to the Federal lands program were discussed. One change 

provided that upon either approval of a State program or implementation of a Federal program for a State, certain 

requirements of that program would become applicable to mining on Federal lands within that State. 

 A second change concerned the review and approval of SMCRA permits. States with cooperative agreements 

approved pursuant to section 523(c) of the Act would independently review and issue SMCRA permits; the previous 

regulations required concurrent review and approval of permits by OSM and the State. "Permit" would be redefined, 

for Federal lands, to mean the permit approved by the regulatory authority instead of the Secretary to reflect this 

change. This responds to one commenter who opposed OSM's revision of the definition of "permit" under revised 

Section 701.5. This is further discussed below under "Permit Application and Mining Plan Review and Approval." 

 A third change concerned the definition of mining plan. "Mining plan" would mean the plan for mining leased 

Federal coal required by the Mineral Leasing Act (MLA). The current regulations define "mining plan" as the plan 

complying with the requirements of SMCRA and other applicable laws and regulations, as well as the MLA. 

 Finally, the requirement for a mining plan would apply only to those surface coal mining and reclamation operations 

on lands containing leased Federal coal, since the mining plan is an exclusive requirement of the Mineral Leasing Act, 

which applies only to minerals owned and leased by the United States. 

 OSM received numerous comments on these major conceptual changes and on the corresponding sections of the 

proposed rules. Comments on these conceptual changes will be addressed before discussion of comments on other, 

more specific changes in the rules. 

 1. APPLICABILITY OF STATE AND FEDERAL PROGRAMS ON FEDERAL LANDS. As stated in the 

proposed rules, Section 740.11(a) makes each approved State program or Federal program for a State applicable to 

(1) coal exploration operations on lands not subject to 30 CFR Part 211 and (2) surface coal mining and reclamation 

operations on Federal lands within the State, except for specific provisions in the State or Federal program that are 

inappropriate for Federal lands. 

 One commenter argued that the statement in the preamble to the proposed rules that these regulations would 

"foster uniform regulation of mining on Federal lands within a State" is "facially inconsistent" with an earlier preamble 
statement that "Congress intended that the Federal lands program would not be uniform for all Federal lands, but 

would instead be tailored to the specific conditions on different Federal lands within a State." The commenter believed 

that the Federal lands program should allow for variations among conditions on Federal lands within a given State. 

 OSM's statement that these regulations would "foster uniform regulation of mining on Federal lands" was intended 

only to point out that the proposed revisions to Subchapter D would generally apply the standards and procedural 

requirements of the applicable regulatory program to surface coal mining and reclamation operations on both Federal 

and non-Federal lands within that State. To the extent that a particular regulatory program does provide different 

performance standards or other requirements for different geographical areas within a State, the revised Federal lands 

program ensures that such provisions are made applicable both on and off non-Federal lands within the State. The 

"uniformity" to which the preamble referred was intended to mean that Federal and non-Federal lands within a given 

State ought not be subject to different standards simply as a consequence of their differing ownership. 

 OSM stated in the preamble to the proposed rules that the Federal lands program currently required operators to 

comply with the requirements of 30 CFR Chapter VII, rather than with the applicable State or Federal program. One 

commenter stated that since the Federal lands program is required by section 523(a) of the Act to include the 

requirements of the approved State program, this statement was confusing and inconsistent with the law, as it implied 

that operators had to comply only with 30 CFR Chapter VII and not the approved State program. 

 OSM did not intend to create the impression that, under previous regulations, there were circumstances in which 

appropriate State program requirements would not apply on Federal lands; in fact, previous 30 CFR Chapter VII 

provided for inclusion of State program requirements in the Federal lands program through cooperative agreements. 

See Previous 30 CFR 745.12(a). Absent a cooperative agreement, previous regulations required operators to comply 

with the requirements of 30 CFR Subchapter K (OSM's permanent program performance standards), rather than with 

the substantive and procedural requirements of the State regulatory program. See previous 30 CFR 744.12(a). In 

contrast, the revised rules provide that standards of the applicable State or Federal program apply whether or not a 

cooperative agreement is in place. See revised 30 CFR 740.19(a). 

 2. PERMIT APPLICATION AND MINING PLAN REVIEW AND APPROVAL. Several commenters 

questioned the basis for OSM's proposed definitions of "mining plan" and "permit application package" and for the 

proposed changes in the procedures for review and approval of permit applications and mining plans. OSM proposed 

to separate permit approval from mining plan approval by providing that States with cooperative agreements would 

independently review and approve SMCRA permits, while the Secretary would retain responsibility for approval of 

mining plans as required under the Mineral Leasing Act and section 523(c) of SMCRA. See 47 FR 25092 (June 9, 

1982). 

 OSM believes that separating the requirement for approval of permits from that for approval of mining plans is 

consistent with the Mineral Leasing Act, as well as with the intent of Congress under SMCRA that "the primary 

governmental responsibility for [regulating] surface mining and reclamation operations subject to this Act should rest 

with the States." SMCRA section 101(f). 

 Previous 30 CFR 740.5 defined "mining plan" to include, among other things, both the mining and reclamation plan 

required under the Mineral Leasing Act and the permit application required under the Act. See also previous 30 CFR 

741.12. Since section 523(c) of the Act prohibits the Secretary from delegating his responsibility to approve mining 

plans, and since previous OSM regulations defined mining plans to include permit applications, the previous 

regulations tended to promote duplicative actions between the State regulatory authority and OSM. This duplication is 

inconsistent with the Act's intent that the primary governmental responsibility rest with the States. 

 The principal change accomplished by the revised regulations is that the term "mining plan" has been redefined to 

exclude the SMCRA permit application in order to allow States with section 523(c) cooperative agreements to assume 

a largely independent role in the review and approval of permit applications filed under sections 506, 507 and 508 of 

the Act. Accordingly, States will have clear authorization under cooperative agreements to assume the responsibility 

for issuing permits under the Act. See revised Section 740.4(c)(1). 
 The revised regulations define a new term, "permit application package," that describes the materials that an 

operator seeking to conduct surface coal mining and reclamation operations on Federal land must file. As defined in 

revised section 740.5, the permit application package includes all information required to be filed by SMCRA 

(including the SMCRA permit application), 30 CFR Chapter VII, Subchapter D, the applicable State or Federal 

program, any applicable cooperative agreement, and all other applicable laws and regulations, including, with respect 

to leased Federal coal, the Mineral Leasing Act and its implementing regulations. 

 Where there is leased Federal coal, the operator will be required to file a resource recovery and protection plan 

(RRPP) within three years of leasing, even if the operator is not yet prepared to file a complete permit application 

package. See discussion of "Resource Recovery and Protection Plans" in the final revisions to 30 CFR Part 211. 47 FR 

33154 (July 30, 1982). As noted in the discussion of those rules, where the operator is prepared to submit the 

complete permit application package by the three-year deadline, the permit application package will be submitted to 

the regulatory authority. Otherwise, an RRPP prepared only to meet the three-year deadline will be submitted to the 

Bureau of Land Management (BLM), while the complete permit application package, including any necessary 

supplements to the RRPP, will be filed with the regulatory authority when ready. 

 Prior to approval of a cooperative agreement, the permit application package will be submitted to OSM, since OSM 

is the regulatory authority on Federal lands in such circumstances. OSM will have lead responsibility for reviewing the 

package, consulting with other Federal agencies with respect to their responsibilities and ensuring compliance with 

applicable Federal laws, regulations and orders not otherwise covered under the SMCRA review. BLM will review the 

RRPP and provide OSM with its recommendation that the Secretary approve, conditionally approve or disapprove the 

RRPP. OSM will prepare a decision document for the Secretary that recommends approval, conditional approval or 

disapproval of the mining plan. 

 Where a cooperative agreement is in place, the permit application package will be submitted to OSM and the State. 

The State will then assume the lead role in the review of the package, which (at the State's option) may or may not 

include ensuring consultation with involved Federal agencies, including OSM. Where the State has elected not to 

coordinate the required consultation among Federal agencies, OSM would ensure that affected Federal agencies were 

consulted and necessary comments or concurrences received. In particular, the State will be responsible for review and 

approval of the SMCRA permit application. OSM will continue to be responsible for ensuring compliance with other 

applicable Federal laws, regulations and orders not otherwise covered under the SMCRA review. Following review of 

the permit application package and receipt of, among other things, the findings and recommendations of the State on 

the permit application and of BLM on the RRPP, OSM will prepare a decision document to assist the Secretary in 

approving the mining plan. The State could issue the SMCRA permit following completion of its review of the permit 

application, although actual commencement of mining would have to await Secretarial approval of the mining plan. 

 Where there is no leased Federal coal and where OSM is the regulatory authority, the operator will still submit a 

permit application package. The package need not, however, include RRPP materials not otherwise required under 

SMCRA, because the Mineral Leasing Act does not apply in the absence of leased Federal coal. OSM will still have 

the lead responsibility for review where there is no cooperative agreement. Since no Secretarial approval of a mining 

plan will be involved, mining could commence once consultation had been completed with the Federal land 

management agency and the permit application had been reviewed and approved by OSM or, as applicable, the State. 

 One commenter stated that the permit application package concept confused matters by requiring the combination 

in one document of logically and legally separate documents, primarily the RRPP required by the Mineral Leasing Act 

and the permit application required by SMCRA. The commenter suggested deletion of the term "permit application 

package." 

 OSM has declined to accept this suggestion because it is necessary to define for potential operators the entire 

package of materials that a person desiring to mine coal on Federal lands must submit. This definition does not confuse 

either the components of the permit application package or the discrete review, concurrence and approval 

responsibilities of, among others, States, BLM, OSM and the Secretary. It merely defines what a potential operator 

must submit. The SMCRA permit application and the mining plan, as described earlier, will be approved or 

disapproved by the regulatory authority and the Secretary, respectively. 
 Another commenter suggested that mining plans should be required for any proposal to mine coal on Federal lands, 

not just for proposals to mine leased Federal coal. This commenter averred that OSM's position is inconsistent with 

section 523(a) of SMCRA, which requires the Secretary to implement SMCRA's requirements on Federal lands, and 

with OSM's position that certain non-delegable Secretarial responsibilities (such as for designating Federal lands 

unsuitable for mining) will remain whether or not leased Federal coal is present. 

 OSM disagrees with these comments. As discussed at length in the preamble to the proposed rules (47 FR 25097,

June 9, 1982), the reference to "mining plan" in section 523(c) of SMCRA is a reference to the plan for mining leased 

Federal coal under the Mineral Leasing Act. There is no basis for requiring mining plans for proposals to mine other 

than leased Federal coal. OSM's position is fully consistent with SMCRA section 523(a), for that section cannot be 

read to expand the applicability of the Mineral Leasing Act mining plan requirement. 30 U.S.C. 1292(a)(8). Nor does 

OSM's position conflict with the express requirement of the Act that the Secretary retain responsibility for designating 

Federal lands unsuitable, since that responsibility, unlike his mining plan approval responsibility, extends to all Federal 

lands. 

 Several commenters requested that OSM clarify that the mining plan and the RRPP are congruent. Some of these 

commenters asserted that the mining plan referred to in section 523(c) of SMCRA pertains only to the production or 

operation requirements of the Mineral Leasing Act and not as well to the reclamation requirements of section 7(c) of 

the Mineral Leasing Act. 

 OSM has rejected these comments. First, the mining plan referred to in section 523(c) is composed of, among other 

things, the "operation and reclamation plan" required by section 7(c) of the Mineral Leasing Act. See preamble to final 

revised 30 CFR Part 211 (47 FR 33166, July 30, 1982) and preamble to the proposed revised Federal lands rules (47 

FR 25097, June 9, 1982). The mining plan, therefore, does have a reclamation aspect. OSM believes that this aspect of 

the Secretary's mining plan approval is satisfied through BLM's review of the reclamation schedule required in the 

RRPP, and as supplemented by OSM and Federal land management agency actions. See preamble to proposed revised 

Federal lands rules (47 FR 25097, June 9, 1982). Mining plan approval is thus not precisely equivalent to approval of 

the RRPP. 

 One person commented that an operator who is ready to submit both the RRPP and the permit application package 

should not be required to submit these separately if both are ready by three years after leasing. 

 OSM agrees. The permit application package is the entire submission by an operator desiring to mine on Federal 

lands. If the full permit application package is ready by the three-year deadline, then that package, which will include 

the RRPP, is all that the operator submits. Only if the full permit application package is not ready by the three-year 

deadline would separate submissions be made. The operator, in that case, would submit the RRPP by the three-year 

deadline and submit the permit application package, supplementing the RRPP as necessary, when the complete 

package is ready. 

 Other commenters recommended that the final rules not require submission of permit application packages to both 

the State regulatory authority and OSM when a cooperative agreement is in place, because the State, and not OSM, 

should review SMCRA permit applications. These commenters also urged that the Secretary's review of permit 

applications in such situations be limited to receiving the State's findings on permit applications. 

 These comments are based on a misconception of how permit application packages will be reviewed when 

cooperative agreements are in place. OSM will receive copies of permit application packages, which include permit 

applications, not to review the applications for compliance with SMCRA, but to facilitate OSM's role in compliance 

with applicable laws not otherwise covered in the SMCRA review. The State will have the sole responsibility for 

reviewing permit applications for SMCRA compliance. In addition, both the proposed and final rules provide that the 

Secretary's decision on mining plan approval will be based on, among other things, the State's findings on the permit 

application. See revised 30 CFR 746.13(f). 

 Several commenters stated that OSM should not sever permit applications from mining plans, because mining plan 

approvals must be consistent with approved permits. 
 OSM believes that the revised regulations provide for consistency between the approved SMCRA permit and the 

approved mining plan. Because mining may not commence prior to Secretarial approval of the mining plan, even if the 

SMCRA permit has already been issued, the Secretary will have the opportunity, prior to any mining being conducted, 

to ensure that the mining plan and permit are consistent. Where there are inconsistencies, the Secretary reserves the 

right to require the operator to comply with any additional conditions or requirements of the approved mining plan. 

 These commenters also believe that the Secretary may not discharge the reclamation aspect of his mining plan 

approval responsibility as proposed (See 47 FR 25097, June 9, 1982), and must instead rely on OSM review of each 

permit application for compliance with SMCRA. 

 OSM disagrees with these commenters' assertions. Neither section 201(b) nor section 523(c) of SMCRA requires 

this OSM role. Section 201(b) is silent on whether or not OSM must perform particular SMCRA functions. Section 

523(c) was discussed earlier. OSM also is certain that the documentation of the SMCRA review and the various 

oversight processes will be more than adequate to apprise the Secretary of pertinent reclamation information. 

 Several commenters averred that, when a cooperative agreement is in force, it is State approval of the permit, rather 

than Secretarial approval of the mining plan, that authorizes mining. These commenters therefore concluded that in 

such circumstances there is not a Federal action within the meaning of NEPA. 

 OSM has not accepted the position of these commenters that there is no continuing Federal NEPA responsibility. 

However, OSM will study the issue of NEPA compliance within the context of SMCRA permit application review and 

MLA mining plan review. OSM will publish further information on NEPA compliance procedures following this study. 

 

B. SPECIFIC REVISIONS 

 All references in the previous rules to the terms "Regional Director" and "Regional Office" have been replaced in 

the revised rules with references to "OSM," to conform to the September 13, 1981, reorganization of OSM which 

abolished OSM's regional structure. All references to "Director" used to describe the head of OSM and to other 

Federal agencies have been replaced with references to "OSM" or the specific name of the Federal agency, as 

appropriate, for simplicity. 

 

PART 700 -- GENERAL 

 

SECTION 700.1 - SCOPE. 

 Previous Section 700.1(d) provided a general description of the applicability of Subchapter D to Federal lands and 

stated that Subchapter D incorporates by reference the requirements of various other subchapters of Chapter VII, 

including the permit requirements of Subchapter G, the performance bond and insurance requirements of Subchapter J, 

the performance standards of Subchapter K, the inspection and enforcement requirements of Subchapter L and the 

blaster certification requirements of Subchapter M. With the exception of Subchapter L, reference to other subchapters 

that are incorporated by reference into Subchapter D has been removed, as proposed, and replaced with the phrase 

"applicable regulatory program." Thus, the rules explicitly incorporate into the Federal lands program the requirements 

of a State program or Federal program implemented for a State. Section 700.1 will continue to state that Subchapter D 

incorporates the requirements of Subchapter L, to make clear that the inspection, enforcement and civil penalty 

requirements of Subchapter L continue to apply where OSM is the regulatory authority on Federal lands that are 

subject to the requirements of Subchapter D. Where the State is the regulatory authority under a cooperative 

agreement, the State will apply its State program requirements to inspection, enforcement and civil penalties on lands 

subject to the requirements of Subchapter D, while OSM will apply the requirements of Subchapter L in its oversight 

capacity. See revised Section 740.17. 

 

SECTION 700.5 - DEFINITIONS. 

 The definition of the term "regulatory program" has been revised to include, under certain circumstances, the 

requirements of subchapters A, F, G, J, K, L, M, and P of Chapter VII, in addition to a State or Federal program. The 
requirements of subchapters A, F, G, J, K, L, M, and P of Chapter VII become the regulatory program where no State 

program under section 503 of SMCRA or Federal program under section 504 of SMCRA has been approved and 

where there is coal exploration or surface coal mining and reclamation operations on Federal lands in a State. Defining 

"regulatory program" in this manner ensures that the permanent program requirements of the Act apply on federal 

lands in those States that do not have approved State or Federal programs that could be used to implement these 

requirements. 

 

SECTION 700.11 - APPLICABILITY. 

 Previous Section 700.11(g) provided that coal exploration on Federal lands outside the permit area would not be 

governed by Chapter VII. this provision has been revised by replacing the phrase "Federal lands outside a permit area" 

with the phrase "Federal lands that are subject to the requirements of 30 CFR Part 211." Thus, revised Section 

700.11(g) eliminates any overlap between the coal exploration requirements of Chapter VII and 30 CFR Part 211 by 

excluding from the requirements of Chapter VII, regulation of exploration operations on Federal lands that are subject 

to 30 CFR Part 211. Exploration operations which are subject to the requirements of Chapter VII include (1) lands 

containing leased Federal coal within a permit area, but only after the commencement of mining operations, (2) lands 

where the surface is owned by the United States and the coal is owned privately or by a State, or (3) lands owned by 

the Tennessee Valley Authority. Limiting the applicability of Chapter VII to coal exploration operations not subject 

to 30 CFR Part 211 will ensure that no duplication occurs between the requirements of Chapter VII and 30 CFR Part 

211, while also ensuring that all exploration on Federal lands is subject to one of these regulatory schemes. The 

relationship between these revised rules and the regulations at 30 CFR Part 211 concerning exploration is further 

discussed below. See discussion of revised 30 CFR 740.11. 

 One commenter objected to proposed 30 CFR 700.11(g), which limits the applicability of 30 CFR Chapter VII, 

with respect to coal exploration, to lands not subject to 30 CFR Part 211. 

 OSM believes this revision is necessary for several reasons. Section 512(e) of the Act provides that section 4 of the 

Federal Coal Leasing Amendments Act of 1975 (FCLAA) shall govern coal exploration operations on Federal lands. 

Section 4 of the FCLAA, however, does not apply to lands without Federal coal. In recognition that Congress 

intended that Federal standards would apply to coal exploration on Federal lands not subject to section 4 of the 

FCLAA, the previous regulations applied OSM's exploration rules to exploration taking place within a permit area on 

Federal lands. See discussion at 44 FR 14972-14973 (March 13, 1979). The applicability of the revised 30 CFR Part 

211 exploration standards differs from that of old 30 CFR Part 211 in that it is extended to exploration within an 

approved permit area on leased Federal coal, but only prior to commencement of mining operations. See 47 FR 33154

(July 30, 1982). Thus, with respect to leased lands, revised 30 CFR 700.11(g) differs in effect from the previous rule 

by commencing the applicability of 30 CFR Chapter VII to coal exploration with actual commencement of surface coal 

mining operations, rather than with approval of a permit. Revised Section 700.11(g) will also apply 30 CFR Chapter 

VII to exploration on Federal lands that do not have Federal coal whether or not a permit has been issued. Previous 30 

CFR 700.11(g) provided that the SMCRA exploration standards do not apply until the SMCRA permit is issued even 

on lands with no leased Federal coal. Exploration on such Federal lands prior to permit approval was therefore 

apparently not subject to the standards of either SMCRA or section 4 of the FCLAA. The revised rule eliminates this 

apparent gap by providing for a dovetailing of the applicability of the 30 CFR Chapter VII and 30 CFR Part 211 

exploration standards. 

 This commenter was also concerned with the standards that would apply to exploration under 30 CFR Part 211. 

 Where BLM has the primary responsibility for exploration on Federal lands, it will apply the applicable exploration 

provisions of OSM's permanent program (30 CFR Part 815) or, where it is in effect, the approved State or Federal 

program. Thus, the requirements of section 512 of SMCRA will continue to be applicable either under 30 CFR Part 

211 or under 30 CFR Chapter VII. 

 This commenter also found no statutory basis for the Secretary to exempt lands owned by the United States and 

entrusted to or managed by the Tennessee Valley Authority (TVA lands) from the requirements of Chapter VII, stating 
that section 701(4) of the Act exempts TVA lands only from section 714 (surface owner protection) and section 715 

(Federal lessee protection) of the Act. 

 OSM agrees with this comment. Revised Section 700.11(g) will not have the effect of exempting TVA lands from 

Chapter VII. Since TVA lands are not covered by 30 CFR Part 211, surface coal mining and reclamation operations 

on such Federal lands must be regulated by 30 CFR Chapter VII (subject, of course, to the exemptions provided under 

section 701(4) of the Act). 

 

PART 701 -- PERMANENT REGULATORY PROGRAM 

 Part 701 of Subchapter A has been revised to conform to revisions to Subchapter D as follows: 

 

SECTION 701.5 - DEFINITIONS. 

 The second sentence of the previous definition of the term "permit" provided that, for purposes of the Federal lands 

program, permit meant the document issued authorizing surface coal mining and reclamation operations on Federal 

lands after approval of a mining plan by the Secretary and, where a cooperative agreement has been approved, by the 

State regulatory authority. As proposed, the revised definition of permit provided that a permit may be issued by the 

State regulatory authority under a cooperative agreement or OSM where there is no cooperative agreement. 

 One commenter opposed redefining the permit in this manner, stating that allowing States to issue permits is 

inconsistent with the intent and clear language of SMCRA. 

 This comment was rejected for the reasons discussed above under "General Comments" and "Permit Application 

and Mining Plan Review and Approval." 

 

SECTION 701.11 - APPLICABILITY. 

 The citation in previous Section 701.11(b) to 30 CFR Part 741.11(c), with respect to conditions which enable 

operations on Federal lands to continue past eight months from the date of approval of a State program or 

implementation of a Federal program has been changed, as proposed, to 30 CFR 740.13(a)(3) to reflect the 

corresponding revisions in Subchapter D. 

PART 740 -- GENERAL REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION 

OPERATIONS ON FEDERAL LANDS 

 As proposed, Subchapter D has been restructured as follows: (a) Part 740 contains the permitting, bonding, 

inspection, enforcement, civil penalty and performance standard provisions of previous Parts 741, 742, 743 and 744, 

respectively. Part 740 incorporates and supplements the permitting, bonding, inspection, enforcement, civil penalty and 

performance standard requirements of the applicable State or Federal program. The inspection, enforcement and civil 

penalty provisions in Part 740 apply the requirements of 30 CFR Parts 842, 843 and 845 to inspection, enforcement, 

civil penalty and related activities that are conducted by OSM and the Department with respect to mining on Federal 

lands; (b) Part 745 provides for State-Federal cooperative agreements under which a State may assume responsibility 

for regulation of surface coal mining and reclamation operations on all Federal lands within the State; and (c) new Part 

746 sets forth the requirements for review and approval of mining plans for surface coal mining and reclamation 

operations on lands containing leased Federal coal. 

 Subchapter D is being published here in its entirety for continuity and the convenience of the reader. 

 

SECTION 740.1 - SCOPE AND PURPOSE. 

 Previous section 740.1 has been revised, as proposed, to eliminate the unnecessary listing in current 30 CFR 740.1 

of the areas covered by Subchapter D and to instead provide a more general introductory statement specifying that 

Subchapter D governs surface coal mining and reclamation operations on Federal lands. 
 PREVIOUS SECTION 740.2 has been removed, as proposed. 

 

SECTION 740.4 - RESPONSIBILITIES. 

 As proposed, revised Section 740.4 describes the responsibilities of the Secretary, various Federal agencies and the 

States for regulating surface coal mining and reclamation operations on Federal lands under SMCRA, the Mineral 

Leasing Act and other applicable Federal laws, regulations and executive orders. Revised Section 740.4 describes in

particular those responsibilities that may be delegated to a State under a cooperative agreement and those 

responsibilities that may not be so delegated. 

 Revised Section 740.4(a) incorporates with some revision the requirements of previous 30 CFR 740.4(a) through 

(c). The only significant change is incorporated in revised Section 740.4(a)(1), which corresponds to previous 30 CFR 

740.4(a) and requires Secretarial approval of mining plans only for leased Federal coal. Revised Section 740.5 defines 

mining plan accordingly. These depart from the previous regulations, which required Secretarial approval of mining 

plans without regard to whether or not the lands contained leased Federal coal. See previous 30 CFR 740.4(a) and 

745.13(i). 

 One commenter opposed the revision of Section 740.4(a) to require Secretarial approval of mining plans only for 

leased Federal coal because the commenter saw no basis in the Act for so limiting the Secretary's authority on Federal 

lands. The same commenter interpreted OSM's use of the term "leased Federal coal" under revised Section 740.4(a) as 

a change in the definition of Federal lands in section 701(4) of the Act. 

 As stated in the proposed rules, OSM believes its interpretation of section 523 of the Act is consistent with the 

requirements of both the Act and the Mineral Leasing Act. Section 523(c) of the Act provides that "nothing in this 

subsection shall be construed as authorizing the Secretary to delegate to the States his duty to approve mining plans on 

Federal lands * * *" The context in which this provision was drafted and its relevant history indicate that this is a 

reference to the requirements of the Mineral Leasing Act, which, with respect to coal, applies only to Federally-owned 

coal. See discussion above of revised definition of "mining plan" under "Permit Application and Mining Plan Review 

and Approval." Secretarial approval of mining plans is required only in circumstances involving the production of 

Federal coal. Accordingly, mining plan approval will not be required for mining private coal, since such mining 

operations are not subject to the mining plan or other requirements of the Mineral Leasing Act or 30 CFR Part 211. 

The Secretary will retain, however, certain other non-delegable responsibilities with respect to mining on Federal lands 

whether or not they contain leased Federal coal. For instance, the Secretary will retain his responsibility to designate 

Federal lands as unsuitable for mining or to terminate such designations of all Federal lands. 

 Use of the phrase "leased Federal coal" to limit the requirement for mining plan approval does not alter in language 

or effect the definition of "Federal lands" in section 701(4) of the Act or 30 CFR 700.5. The phrase "leased Federal 

coal" simply clarifies that the Secretary's mining plan approval responsibility extends only to lands containing leased 

Federal coal. To avoid further misinterpretation, however, OSM has prefaced the phrase "leased Federal coal" with the 

phrase "lands containing" in revised 30 CFR 740.4(a)(1). 

 OSM has included in the final rule two new provisions under revised Section 740.4(a) and corresponding provisions 

under revised Section 745.13. The first set of changes adds new Sections 740.4(a)(4) and 745.13(o) which specify that 

the Secretary is responsible for determining valid existing rights for surface coal mining and reclamation operations on 

Federal lands within the boundaries of any areas specified under section 522(e) (1) or (2) of the Act. These areas 

include (1) lands within the boundaries of units of the National Park System, the National Wildlife Refuge System, the 

National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including 

study rivers designated under section 5(a) of the Wild and Scenic Rivers Act and National Recreation Areas designated 

by Act of Congress (section 522(e)(1) of the Act), and (2) lands within the boundaries of any national forest (section 

522(e)(2) of the Act). Valid existing rights determinations on such areas are of such paramount national importance 

that this responsibility appropriately should not be delegated. Thus, the inclusion of new Section 740.4(a)(4) reflects 

the Secretary's continuing commitment to carry-out the Congressional mandate to protect these areas and to ensure 

that there will be no mining on Federal lands in national parks. 
 The second set of changes adds new Section 740.4(a)(5) and 745.13(p). These provisions recognize that under 

section 522(e)(2) of the Act, it is the Secretary's responsibility to determine that there are no significant recreational, 

timber, economic, or other values which may be incompatible with surface coal mining operations on any Federal lands 

within the boundaries of any national forest. Therefore, these determinations must be reserved to the Secretary and 

may not be delegated to States. 

 In this regard, OSM notes that determinations or valid existing rights and of compatibility which are reserved to the 

Secretary should be performed independently of the permit review process. Under these final rules, the permit review 

process may be delegated to States under cooperative agreements. OSM expects in the near future to propose further 

changes to its Federal lands program to specify the procedures the Secretary will use in making such determinations on 

Federal lands. 

 As proposed, revised Section 740.4(b) specified those responsibilities that must remain with OSM even under a 

cooperative agreement. Revised Section 740.4(b)(1), which had no counterpart in the previous regulations, reserves 

to OSM responsibility for preparing and submitting to the Secretary a decision document that recommends approval, 

conditional approval or disapproval of all mining plans or mining plan modifications. OSM will be responsible for this 

function even in States with cooperative agreements. 

 Proposed Section 740.4(b)(2) would have required OSM to ensure compliance with applicable Federal laws and 

regulations other than SMCRA and its implementing regulations. 

 Several commenters stated that since a cooperative agreement delegates to the State regulatory authority permit 

application approval authority on Federal lands, and since permit application approval and not mining plan approval 

authorizes disturbance of lands by a surface mining operation, there is no Secretarial action that would trigger NEPA 

compliance requirements. Even though the Secretary must comply with other Federal laws, these commenters 

continued, the Secretary plays a role only by assuring himself that these "other Federal laws" have not been violated. 

The commenters believe that such assurance can be better accomplished by a scheme other than that of the proposed 

Federal lands program, which requires, a decision document for Secretarial approval of the mining plan. The 

commenters would have either the State, OSM or other affected Federal agencies provide the Secretary with 

information on compliance with other Federal laws. The Secretary would notify the State when he is satisfied that 

these other applicable Federal laws for which he has responsibility are not violated. The State would then issue the 

permit. Therefore, the commenters reasoned, the final action allowing mining would be the State's permit issuance, not 

the Secretary's mining plan approval and, thus, NEPA would not be triggered. 

 OSM has not accepted the position of the commenters that NEPA would not be triggered. However, OSM believes 

that the position of the commenters warrant further review. Therefore, OSM will further review the relationship 

between NEPA, the SMCRA permit application, and the Mineral Leasing Act mining plan, and whether or not NEPA 

compliance can be achieved through alternatives to present procedures. Such alternatives include, among others, (1) 

whether or not the SMCRA permit application review and approval can constitute a functional equivalent to the NEPA 

process or (2) whether NEPA compliance can be satisfied through actions taken by the Federal land management 

agency. In any case, proposed paragraph (b)(2) was confusing as written and has been deleted from the final rule. 

Subsequent sections of the final rule have been renumbered accordingly. 

 Revised Section 740.4(b)(2) continues the requirement of previous 30 CFR 740.4(e) that OSM be responsible for 

approving experimental practices on Federal lands. 

 Revised Section 740.4(b)(3), which corresponds to previous Section 740.4(g), reserves to OSM responsibility for 

overseeing State regulatory authority inspection, enforcement and civil penalty activities with respect to surface coal 

mining and reclamation operations on Federal lands. Revised section 740.4(c)(5), on the other hand, allows the State 

regulatory authority to assume responsibility for inspection, enforcement and civil penalty activities that would be the 

responsibility of OSM in the absence of a cooperative agreement. Thus, after a cooperative agreement is approved, the 

State will enforce its State program (including its own inspection, enforcement and penalty provisions) on Federal 

lands, while OSM will conduct necessary oversight inspection, enforcement and civil penalty activities pursuant to 30 

CFR Parts 842, 843 and 845. 
 Under revised Section 740.4(b)(4), citizen requests for Federal inspections on Federal lands will be processed in 

accordance with 30 CFR Parts 842, 843 and 845, which include provisions for citizen involvement in the inspection, 

enforcement and civil penalty process. See e.g. 30 CFR 842.12 and 842.15. This revision makes clear the process of 

citizen participation in inspection, enforcement and civil penalty activities on Federal lands where OSM is conducting 

such activities. 

 Several commenters stated that proposed Section 740.4(b)(5) (revised Section 740.4(b)(4)) and 740.4(c)(5) --

which limit OSM, where there is a cooperative agreement, to conducting oversight inspections, enforcement and civil 

penalty activities on Federal lands, and to responding to citizen requests for Federal inspections -- violate sections 517, 

518, and 521 of the Act. The commenters believe that the references in sections 518 and 521 to the Secretary's civil 

penalty and enforcement authority under the Federal lands program make explicit that his full inspection, enforcement 

and civil penalty authority (not just oversight authority) extends to Federal lands without regard to whether a 

cooperative agreement is in force. The commenter also reasoned that since the Secretary's enforcement authority on 

lands cannot be restricted to oversight, citizens cannot be limited to requesting Federal oversight inspections. 

 OSM disagrees that the Secretary must maintain full inspection, enforcement and civil penalty authority when a 

cooperative agreement is in place. Section 523(c) of the Act allows the Secretary to enter into a cooperative 

agreement with a State to provide for State regulation of surface coal mining and reclamation operations on Federal 

lands. OSM interprets this section to allow States with cooperative agreements to assume full responsibility for 

implementing the requirements of the Act on Federal lands, rather than joint responsibility with OSM. Further, OSM 

can find no prohibition in the Act against delegating to a State with a cooperative agreement the responsibility for 

inspection, enforcement and assessing civil penalties required under the Act. On the contrary, requiring dual inspection, 

enforcement and civil penalty systems (State and OSM) would be inconsistent with the intent of section 523(c) to 

allow States independently to implement SMCRA on Federal lands subject, of course, to OSM oversight and the 

express limitations on Secretarial delegation contained in section 523(c). 

 OSM agrees, however, that citizens have the right to request Federal inspections on Federal lands when a 

cooperative agreement is in place. This right is provided for in 30 CFR 842.12 and revised Section 740.4(b)(4), which 

make clear that OSM will continue to be responsible for 30 CFR Parts 842, 843 and 845 when a cooperative 

agreement is in place. Section 740.4(b)(4) has been revised to refer explicitly to citizens' rights to request Federal 

inspections. 

 Revised Section 740.4(b)(5) requires OSM to oversee a State's administration and enforcement of the terms of a 

cooperative agreement. 

 Revised Section 740.4(c), as proposed, sets forth those OSM responsibilities that may be delegated to a State 

regulatory authority under the terms of a cooperative agreement. Revised Section 740.4(c)(1) allows a State with a 

cooperative agreement to review permit applications and issue SMCRA permits for surface coal mining and 

reclamation operations on Federal lands. States could assume similar authority with respect to revisions and renewals 

of permits and applications for transfer, sale or assignment of permits. The previous regulations placed all these 

responsibilities with OSM. See previous 30 CFR 740.4(d). 

 One commenter opposed the delegation in revised Section 740.4(c)(1) because the commenter believes that OSM 

has improperly limited the Secretary's mining plan review authority to that authorized by the Mineral Leasing Act. 

Another commenter supported revised Section 740.4(c)(1), stating that it properly authorizes States with cooperative 

agreements to issue permits because under section 523(c) of the Act, the Secretary's duty to review mining plans 

applies only to Federally-owned coal. 

 OSM is adopting revised Section 740.4(c)(1) as proposed for the reasons discussed above under "Permit 

Application and Mining Plan Review and Approval." 

 OSM is adopting revised Sections 740.4(c)(2) and 740.4(c)(3), which correspond to the remaining requirements of 

previous 30 CFR 740.4(d). Revised Section 740.4(c)(2) continues the requirement of the second sentence of previous 

30 CFR 740.4(d) for consultation with Federal land management agencies with respect to post-mining land uses and 
special requirements for protection of non-coal resources in areas affected by surface coal mining. Revised Section 

740.4(c)(3) continues the requirement of the last sentence of previous Section 740.4(d) that the Bureau of Land 

Management be consulted concerning the development, production and recovery of coal resources. This was formerly 

a requirement of the Geological Survey. 

 Under revised Section 740.4(c)(4), the State regulatory authority can assume the performance bond, Federal lessee 

protection bond and liability insurance responsibilities previously found in 30 CFR 740.4(f). Revised Section 

740.4(c)(4) provides that, with respect to the Federal lessee protection bond, approval requires the concurrence of the 

Federal land management agency. Previous 30 CFR 740.4(f) inappropriately provided that, in addition to the Federal 

lessee protection bond, the Federal land management agency must concur in approval of the performance bond and 

liability insurance. 

 One commenter stated that the proposed change in previous Section 740.4(c) (4), to allow States with cooperative 

agreements to assume performance bonds and liability insurance responsibilities for surface coal mining and 

reclamation operations on Federal lands without the consent of the Federal land management agency, would be 

inconsistent with section 6 of the Federal Coal Leasing Amendments Act of 1976 (30 U.S.C. 207(c)). 

 OSM has declined to accept this comment because OSM believes that section 6 of the Federal Coal Leasing 

Amendments Act of 1976 does not prohibit the delegation of the bonding responsibilities under section 523(c) of the 

Act. Under revised Section 740.13(c)(6) and 740.4(f), the Federal land management agency must, among other things, 

be consulted prior to approval of permit applications (which include requirements for the performance bond). Final 

approval of the performance bond, however, is properly a function of the approved regulatory authority under 

SMCRA. The commenter is correct, however, in that under the Mineral Leasing Act, if the surface is under the 

jurisdiction of an agency other than the Department of the Interior, the Secretary must also obtain the concurrence of 

that other Federal agency prior to issuing the required approval under the MLA. To clarify this limitation, Section 

740.4(f)(4) has been revised to state specifically that where the land contains leased Federal coal and the surface is 

under the jurisdiction of a Federal agency other than the Department, that other agency must concur in the terms of the 

mining plan approval. 

 The same commenter stated that it is inconsistent with section 715 of the Act to allow States to assume the 

performance bond and liability insurance responsibilities of OSM as was proposed. The commenter believes that, while 

it is clear from sections 509 and 715 of the Act that States with approved cooperative agreements are entitled to 

receive monies due under these bonds and, therefore, must have some concurrent responsibility over the administration 

of these bonds, it is equally clear that the Federal Government must retain some monetary and administrative 

responsibility for these bonds in order to protect the Secretary's stewardship interest in public lands and to protect his 

SMCRA responsibilities. 

 OSM disagrees with the commenter. Allowing States to assume the responsibilities set forth in revised Section 

740.4(c)(4) is consistent with section 523(c) of the Act with respect to SMCRA responsibilities that are delegable to 

States. The Secretary will ensure that States properly carry out these delegated responsibilities on Federal lands 

through oversight of the State program and the cooperative agreement. The Secretary will retain a monetary interest in 

the bonds required on Federal lands, since revised Section 740.15(b) requires that bonds be payable to the United 

States in the absence of a cooperative agreement and to both the State and the United States where there is a 

cooperative agreement. Thus, the Federal Government will have both a monetary and an administrative interest in the 

bonds in all instances. 

 One commenter stated that Section 740.4(c) should allow OSM to delegate to States with cooperative agreements 

the release of performance bonds. 

 OSM agrees with this comment, and has revised Section 740.4(c)(4) accordingly. OSM believes it is reasonable to 

allow States with cooperative agreements to release performance bonds as well as to approve them. 

 Revised Section 740.4(c)(5) allows the State regulatory authority to be responsible for inspection, enforcement and 

imposition of civil penalties that would otherwise be performed by OSM as the regulatory authority. Where a State 
assumes this responsibility under a cooperative agreement, OSM will assume an oversight role, as provided in revised 

Section 740.4(b)(4) of the regulations. 

 OSM has adopted revised Section 740.4(c)(6), as proposed. This section allows the State regulatory authority to 

assume the responsibility for review and approval of exploration plans for operations not subject to 30 CFR Part 211, 

such as on lands owned by the Tennessee Valley Authority and on Federal lands with underlying private coal. This will 

ensure that no gap exists between State regulatory authority and BLM responsibilities for exploration on Federal lands 

in States with cooperative agreements. 

 One commenter stated that, since the Secretary's authority under section 523 of the Act to administer the Federal 

lands program is not limited to Federally-owned coal, no State should be given authority to review and approve coal 

exploration plans on lands owned by the Tennessee Valley Authority and on Federal lands with underlying private coal. 

 OSM disagrees with this comment. OSM believes that States should have the authority to approve exploration 

operations under a cooperative agreement for Federal lands not governed by 30 CFR Part 211. This is consistent with 

section 523(c) of the Act. OSM has this responsibility in the absence of a cooperative agreement. 

 Revised Section 740.4(c)(7), as proposed, allowed the State regulatory authority to assume some responsibility for 

preparation of documentation in compliance with the National Environmental Policy Act (NEPA). In adopting revised 

Section 740.4(c)(7), OSM recognizes that where the State prepares NEPA documentation, OSM must (1) furnish 

guidance and participate in the preparation of NEPA documents and (2) independently evaluate NEPA documents 

prior to approval or adoption in order to make the ultimate decision on Federal action to be taken on the alternatives 

presented in any NEPA documents. The State regulatory authority may be authorized to prepare NEPA compliance 

documents (environmental assessments (EA's) or (environmental impact statements (EIS's)), provided OSM: (1) 

Determines the scope, content, format and objectivity of NEPA compliance documents and jointly participates in 

preparing such documents; (2) makes the determination of whether or not the preparation of an EIS is required; (3) 

notifies and solicits views of other State and Federal agencies, as appropriate, on the environmental effects of the 

action; (4) publishes and distributes draft and final NEPA compliance documents; (5) makes policy responses to 

comments on draft NEPA compliance documents; (6) independently evaluates NEPA compliance documents; and (7) 

adopts NEPA compliance documents and determines Federal actions to be taken on the alternatives presented in them. 

 One commenter suggested that OSM include in the list of responsibilities delegable to States under cooperative 

agreements consultation and participation in processes to designate Federal lands as unsuitable for mining. 

 OSM has declined this suggestion because OSM's and the Secretary's responsibilities in this area are non-delegable 

under 30 U.S.C. 1273(c) and because the States' role in OSM's Federal lands unsuitability process is addressed in 30 

CFR Part 769, the revision of which is the subject of a separate rulemaking. 

 As proposed, revised Section 740.4(d) identifies the responsibilities assigned to the BLM. Revised Section 740.4(d) 

continues the requirements of previous Sections 740.4(h) and 740.4(i) with minor exceptions, including the 

replacement of the Geological Survey with the Bureau of Land Management as the responsible agency to reflect the 

Secretary's Order No. 3087 (December 3, 1982) which transferred these responsibilities to BLM. In addition, revised 

Section 740.4(d)(2) refers to coal exploration licenses issued pursuant to 43 CFR Part 3400 (instead of 43 CFR Part 

3507) to conform to revisions in those regulations. Revised Section 740.4(d)(1) and 740.4(d)(5) delete references to 

the permit area, to reflect changes in 30 CFR Part 211 that alter responsibilities for exploration on Federal lands. See 

47 FR 33154 (July 30, 1982). Under revised Section 740.4(d)(4), the Bureau of Land Management is responsible for 

reviewing the resource recovery and protection plan portion of the permit application package and for recommending 

to the Secretary approval, conditional approval or disapproval of the resource recovery and protection plan, as 

outlined earlier in this notice. Revised Section 740.4(d)(6) indicates that BLM is responsible for protecting mineral 

resources not under lease. 

 Revised Section 740.4(d)(7) indicates that BLM is responsible for the issuance of exploration licenses for 

Federally-owned coal. Revised Section 740.4(d)(8) makes BLM responsible for the issuance of leases and licenses to 

mine pursuant to 43 CFR Part 3400. Revised Section 740.4(d) (9) indicates that BLM is responsible for the issuance, 
readjustment, modification, termination, cancellation, and approval of transfers of Federal coal leases required by the 

Mineral Leasing Act and the Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. 351, et seq. ). 

 OSM is adopting revised Section 740.4(e) substantially as proposed. That section identifies specific responsibilities 

of Federal land management agencies. Revised Section 740.4(e) acknowledges the responsibility of Federal land 

management agencies to make certain decisions regarding surface coal mining and reclamation operations on Federal 

lands within their jurisdiction. Federal land management agencies are responsible, under revised Section 740.4(e), for 

determining post-mining land uses (revised Section 740.4(e)(1)), ensuring protection of non-mineral resources (revised 

Section 740.4(e)(2)), and imposing appropriate conditions on surface coal mining and reclamation operations on lands 

under their jurisdiction (revised Section 740.4(e)(3)). In accordance with the comment discussed above under Section 

740.4(c)(4), where lands containing leased Federal coal are under the jurisdiction of an agency other than the 

Department, that agency must also concur in the terms of the mining plan approval. 

 One commenter expressed concern that BLM might not have the same responsibilities under Section 740.4(f) that 

other Federal land management agencies have in view of the separate treatment of BLM under Section 740.4(e). 

 Revised Section 740.4(e) lists those BLM responsibilities that other Federal land management agencies do not 

share, while revised Section 740.4(f) lists those responsibilities shared by all Federal land management agencies, 

including BLM. 

 

SECTION 740.5 - DEFINITIONS. 

 As proposed, revised Section 740.5 deletes several terms defined in previous 30 CFR 740.5. The definition of the 

term "authorized State regulatory authority" has been deleted because the term is not used in revised Subchapter D. 

The term has been replaced by "regulatory authority," which means both OSM acting prior to approval of a 

cooperative agreement and the State regulatory authority acting afterwards. 

 One commenter stated that OSM should not delete the term "State regulatory authority" because States with 

approved cooperative agreements can never be the sole regulatory authority on Federal lands. 

 OSM has rejected this comment and is deleting the term "State regulatory authority," as proposed. This change is 

consistent with the other changes in these regulations to allow States with cooperative agreements to assume full 

responsibility for administering delegable requirements of the Act on Federal lands in accordance with section 523(c) 

of the Act. 

 Definition of the term "mining supervisor" has been deleted, as proposed, because the term is not used in revised 

Subchapter D. "Authorized officer" has been redefined to refer to any person authorized to take official action on 

behalf of a Federal agency having responsibility relating to Federal lands. "Cooperative agreement" has been defined 

as a cooperative agreement approved in accordance with section 523(c) of the Act and 30 CFR Part 745. 

 The term "surface managing agency" has been replaced by the term "Federal land management agency" to clarify 

that "Federal land management agency" applies specifically to the agency having jurisdiction over the surface of the 

Federal lands in question. 

 One commenter stated that the phrase "surface of" should be deleted from the definition of "Federal land 

management agency" since in many cases TVA holds only a mineral interest in its coal lands. 

 OSM has rejected this comment and is adopting the definition of "Federal land management agency" as proposed. 

While OSM recognizes that the definition of "Federal land management agency" has the effect of excluding 

circumstances where TVA holds only a mineral interest in its coal lands, the proposed definition will suffice, since the 

regulations which utilize the term are only concerned with the activities of the agency with jurisdiction over the surface 

of such lands. 
 Consistent with the revised structure of Subchapter D, the definitions of "Federal lease bond" and "Federal lessee 

protection bond" have been moved from previous Section 742.5 to revised Section 740.5. Thus, all definitions for 

Subchapter D appear in revised Section 740.5. The definition of "Federal lease bond" has been revised to be consistent 

with the regulations of the Bureau of Land Management at 43 CFR Part 3400. 

 "Leased Federal coal" has been defined as coal leased pursuant to 43 CFR Part 3400, except for mineral interests in 

coal on Indian lands. Definition of this term is necessary because the responsibilities of different Federal agencies and 

the applicability of such laws as the Mineral Leasing Act are dependent upon whether or not leased Federal coal is 

involved. 

 As proposed, the definition of "mining plan" has been revised to mean the plan for mining leased Federal coal 

required by the Mineral Leasing Act. The reasons for the revised definition of "mining plan" are discussed above under 

"Permit Application and Mining Plan Review and Approval." 

 The proposed definition of "performance bond" has been deleted from Section 740.5 because the term is already 

defined at 30 CFR Part 701.5. 

 The new term "permit application package" is treated above in the discussion of "Permit Application and Mining 

Plan Review and Approval." It refers to the application materials submitted by a person desiring to mine on Federal 

lands and includes, among other things, the permit application required under SMCRA and, where Federal coal is 

under lease, the resource recovery and protection plan (RRPP) required under the Mineral Leasing Act. 

 One commenter stated that SMCRA permit applications and MLA RRPP's should not be combined into "permit 

application packages." The commenter believes that the separate functions under SMCRA, and under the MLA, must 

be clear and concise, which is not possible if the requirements of the two acts are combined. 

 OSM disagrees with the commenter for the reasons discussed above under "Permit Application and Mining Plan 

Review and Approval." Further, by combining the requirements of the permit application under SMCRA and the 

RRPP in one permit application package, conflicting or duplicative submittals can be eliminated and approval of the 

mining plan can be coordinated among the Federal agencies involved. 

 As proposed, the term "regulatory authority" has been defined as OSM when OSM is administering Subchapter D 

(as will be the case where there is no cooperative agreement) and as the State regulatory authority when the State is 

administering the requirements of its program on Federal lands under a cooperative agreement. 

 As proposed, the term "TVA-owned land" has been defined as land owned by the United States and entrusted to or 

managed by the Tennessee Valley Authority. 

 Other terms used in the rules have meanings as set forth in 30 CFR Part 211. These include "exploration," 

"exploration plan," "maximum economic recovery," "method of operation," "mine" and "resource recovery and 

protection plan." 

 

SECTION 740.10 - INFORMATION COLLECTION. 

 Revised Section 740.10 corresponds to the "Note" at the beginning of previous 30 CFR Part 741 with respect to 

permits and the "Note" at the beginning of 30 CFR Part 742 with respect to bonds; it identifies the OMB approval 

numbers for the relevant information collection requirements of those Parts. OSM has deleted these notes and is 

codifying OMB's revised approval of the relevant information collection requirements of previous Parts 741 and 742 in 

revised Section 740.10. 

 

SECTION 740.11 - APPLICABILITY. 

 OSM is adopting, as proposed, Section 740.11, which describes when Subchapter D and a regulatory program will 

be applicable to surface coal mining and reclamation operations on Federal lands within a State. 
 Section 740.11(a) provides that upon approval of a regulatory program for a State, Subchapter D and that 

regulatory program will become applicable to (1) coal exploration operations on Federal lands not subject to 30 CFR 

Part 211; (2) surface coal mining and reclamation operations on lands containing leased Federal coal; and (3) surface 

coal mining and reclamation operations on lands where either the coal to be mined or the surface is owned by the 

United States, except as specified in Subchapter D. This clarifies an ambiguity in the previous regulations pertaining to 

the location of surface facilities on private- or State-owned surface that might overlie Federal minerals, but where there 

is no Federal coal mining contemplated. OSM believes that, because of the interaction of the State primacy provision, 

section 503 of the Act, with section 523 of the Act, the Federal lands program can be interpreted to exclude State- or 

privately-owned surface overlying Federally-owned coal where the operation will not involve mining the 

Federally-owned coal and where there will be no disturbance of the Federally-owned estate. This secondary impact to 

the Federal interest will be so slight that OSM does not believe that Congress intended that the provisions of the 

Federal lands program should be imposed in addition to the requirements of the applicable Federal or State regulatory 

program. 

 OSM had proposed to make the Federal lands program applicable to surface coal mining and reclamation 

operations on lands "where either the surface or mineral interests owned by the United States will be directly affected 

by such operations * * *" Several commenters addressed the use of the term "directly affected" in proposed Section 

740.11(a). One commenter stated that it should be qualified by the phrase "in a manner requiring reclamation" to 

preclude minimum effects like blowing dirt from triggering applicability. 

 Another commenter stated that "directly affected" should be clarified to mean either actual mining or exploration of 

Federally-owned coal or action that would incidentally preclude the coal from being mined in the future. This 

commenter noted that since SMCRA is not concerned with the leasing of the right or removal of the coal itself, OSM 

does not have jurisdiction over mining operations on lands containing unleased Federal coal. 

 A third commenter stated that the phrase "directly affected" should be clarified so that the State's delegated 

responsibilities regarding coal exploration activities will not be confused with other delegated requirements pertaining 

to surface coal mining and reclamation obligations. 

 A fourth commenter stated that more clarity is needed as to what a Federal mineral "interest" and "directly affected" 

mean. This commenter noted that if a Federal mineral interest pertains to leased coal only, then that should be stated. 

 A fifth commenter noted that OSM should not restrict the Act's requirements to surface coal mining and 

reclamation operations on lands "where either the surface or mineral interests owned by the United States will be 

directly affected by such operations." The commenter asserted that there is no statutory basis for this since such 

surface activities would be "incidental" to the underlying Federal coal and, therefore, within the definition in section 

701(28)(B) of "surface coal mining" which includes "areas upon which are sited structures, facilities, or other property 

or materials on the surface, resulting from or incident to such activities." The commenter also asserted that the 

non-applicability of the Mineral Leasing Act to private coal underlying Federal lands is no reason to restrict SMCRA 

to lands which are "directly affected" by such operations. 

 Several commenters stated that OSM should clarify that in the case of intermingled Federal and non-Federal coal 

covered by the same mining permit, the prohibition on mining before the Secretary's approval applies only to the 

Federal coal. 

 OSM has reviewed these comments and has decided to continue to recognize a limitation on the applicability of the 

Federal lands program where the effect on a Federal interest will be minimal. The final rules, however, have been 

revised based upon the comments indicating confusion with respect to the use of the phrase "directly affected." Under 

the final rules, this phrase has not been adopted and the rules have been clarified to indicate that Subchapter D applies 

to surface coal mining and reclamation operations on lands containing leased Federal coal and lands where either the 

coal to be mined or the surface is owned by the United States. 

 OSM has, as proposed, revised Section 740.11(b), which provides that, where OSM is administering Subchapter D 

and applying a State program prior to approval of a cooperative agreement for the State, references in the State 
program to the State or to officials of the State (with respect to functions of the State regulatory authority will be 

construed as references to OSM in order that OSM can effectively administer State program requirements. 

 Section 740.11(c) provides that where the Secretary and the State have entered into a cooperative agreement, the 

cooperative agreement will delineate the responsibilities of the Secretary and the State with respect to administration 

of the regulatory program and Subchapter D. For example, where the Secretary has entered into a cooperative 

agreement with a State, the State regulatory authority will assume the primary role for the review and processing of 

permit applications on Federal lands, subject to the terms of the cooperative agreement. The cooperative agreement, in 

addition to providing for State processing of permit applications on Federal lands, will specify how the responsibility 

for administration of the additional requirements of this Subchapter for a permit application package will be divided 

between OSM and the State regulatory authority. Although some of the additional requirements are non-delegable, it 

is possible for the State to perform much of the basic research and analysis required for the Department to determine 

compliance with such requirements. 

 Section 740.11(d) reserves to the Secretary and other Federal agencies the right to condition actions affecting 

Federal lands within their jurisdictions in accordance with section 702(b) of SMCRA. For example, a decision 

regarding surface coal mining and reclamation operations may be subject to: (1) Conditions on mining that may have 

resulted from the review of Federal areas for unsuitability for mining under Subchapter F of this Chapter; (2) terms and 

conditions or special stipulations of a lease issued pursuant to the Mineral Leasing Act; and (3) any land use plans or 

other requirements of the Federal land management agency with respect to the surface estate. 

 Revised Section 740.11(e) provides that Subchapter D does not apply to surface coal mining and reclamation 

operations within a State prior to promulgation of a permanent regulatory program for that State. Prior to such 

approval, the SMCRA requirements incorporated in 30 CFR Part 211 and 30 CFR Chapter VII, Subchapter B will 

apply to surface coal mining and reclamation operations on Federal lands within the State. The Department has 

promulgated regulations to delete these requirements from 30 CFR Part 211, but only after final promulgation and 

implementation of revised Subchapter D. See 47 FR 33154 (July 30, 1982). 

 One commenter stated that the Federal lands program applies to States with Federal lands within their boundaries 

regardless of whether or not a State has achieved primacy to administer the Act. The commenter also stated that the 

requirements of 30 CFR Part 211 are no substitute for those of OSM's interim program on Federal lands prior the 

State obtaining primacy. For those reasons the commenter was opposed to Section 740.11(e). 

 This comment is based on a misconception of how the Secretary has implemented the interim program on Federal 

lands. The interim program performance standards apply on Federal lands (30 CFR 710.11(c)) and, with respect to 

lands containing leased Federal coal, were incorporated into 30 CFR Part 211 (43 FR 37181 (August 22, 1978)). 

These requirements have been applicable in States without State programs and will remain so until Subchapter D 

becomes effective, at which time the permanent program standards take effect. See 44 FR 77440 (December 31, 

1979); 47 FR 33154 (July 30, 1982). Thus, for example, only the interim program performance standards (and not 30 

CFR 211) are applicable to surface coal mining operations on Federal lands without leased Federal coal in a State prior 

to the approval of a regulatory program. Final section in 30 CFR Part 211 and 30 CFR Chapter VII, Subchapter B will 

apply to surface coal mining and reclamation operations on Federal lands within the State. The Department has 

promulgated regulations to delete these requirements from 30 CFR Part 211, but only after final promulgation and 

implementation of revised Subchapter D. See 47 FR 33154 (July 30, 1982). 

 One commenter stated that the Federal lands program applies to States with Federal lands within their boundaries 

regardless of whether or not a State has achieved primacy to administer the Act. The commenter also stated that the 

requirements of 30 CFR Part 211 are no substitute for those of OSM's initial regulatory program on Federal lands 

prior the State obtaining primacy. For those reasons the commenter was opposed to Section 740.11(e). 

 This comment is based on a misconception of how the Secretary has implemented the initial regulatory program on 

Federal lands. The initial regulatory program performance standards apply on Federal lands (30 CFR 710.11(c)) and, 

with respect to lands containing leased Federal coal, were incorporated into 30 CFR Part 211 (43 FR 37181 (August 

22, 1978)). These requirements have been applicable in States without State programs and will remain so until 
Subchapter D becomes effective, at which time the permanent program standards take effect. See 44 FR 77440

(December 31, 1979); 47 FR 33154 (July 30, 1982). Thus, for example, only the initial regulatory program 

performance standards (and not 30 CFR 211) are applicable to surface coal mining operations on Federal lands 

without leased Federal coal in a State prior to the approval of a regulatory program. Final Section 740.11(e) makes 

clear that the permanent Federal lands program becomes applicable when a regulatory program is implemented in a 

State. Thus, for example, when the State achieves primacy, the permanent Federal lands program, 30 CFR Chapter 

VII, Subchapter D, becomes applicable to Federal lands within a State. 

 OSM is adopting a new Section 740.11(f) which provides that, where coal exploration or surface coal mining and 

reclamation operations within a State are only on Federal lands and where no State or Federal program has been 

approved for the State, this subchapter shall apply in that State upon the effective date of these regulations. The 

regulatory program triggering the applicability of subchapter D, in this case, is the permanent program requirements of 

subchapters A, F, G, J, K, L, M, and P of Chapter VII. See the revised definition of "regulatory program" under 

revised Section 700.5. Thus, new Section 740.11(f) ensures that the permanent program requirements of SMCRA 

apply on Federal lands in States that do not have approved State or Federal programs implementing these 

requirements. 

 

SECTION 740.13 - PERMITS. 

 OSM is adopting revised Section 740.13 which retains and consolidates those requirements of previous Part 741 

that are unique to Federal lands and will not be included in a regulatory program. Those portions of previous Part 741 

that have counterparts in the applicable regulatory program have not been repeated in revised Subchapter D. Persons 

concerned with the requirements for a permit to conduct surface coal mining and reclamation operations on Federal of 

the state regulatory program" in order to mitigate any adverse impacts on adjacent Federal lands. 

 OSM believes that adequate protection of any affected Federal resource will be ensured by applying the 

performance standards of the same regulatory program to both Federal and non-Federal lands. Any impacts on the 

Federal resource that cannot be satisfied by the State program are subject to the additional requirements of Subchapter 

D. Thus, this comment was rejected. 

 OSM is adopting revised Section 740.13(a)(1), as proposed. This section provides that no person shall conduct 

surface coal mining and reclamation operations on Federal lands unless that person has first obtained a permit issued 

pursuant to the regulatory program. Thus, operators proposing to conduct surface coal mining and reclamation 

operations on Federal lands must comply with the permitting and approval requirements of both the applicable 

regulatory program and Part 740. The requirements of Part 740 supplement the regulatory program by specifying 

those additional requirements that are unique to Federal lands and outside of the scope of the regulatory program. 

 OSM is adopting revised Section 740.13(a)(2), as proposed. It retains, with minor revisions, the requirements of 

previous Section 741.11(d), which provided that the permittee shall conduct operations in accordance with all 

requirements of the permit and lease or license, Subchapter D and all other applicable State and Federal laws. 

 Previous Section 741.11(c) provided for surface coal mining and reclamation operations on Federal lands to 

continue past the eight-month period established by previous Section 741.11(a) where the operations are being 

conducted under a mining plan approved by the Secretary in accordance with the Act and 30 CFR Part 211. With 

revisions, this section has been retained as revised Section 740.13(a)(3), although the cross-reference to previous 

Section 741.11(a) has been changed to "the applicable regulatory program." The permitting requirements of the 

applicable regulatory program will implement the requirement of section 506(a) of the Act that unpermitted surface 

coal mining operations not continue beyond eight months after the approval of a State or Federal program. It should 

be noted that the eight-month deadline for submission of a permit application as it applies to ongoing operations that 

were required to have a previously approved 30 CFR 211 mining plan is limited to lands containing leased Federal 

coal. Section 740.13(a) has been revised to reflect the limited applicability of 30 CFR Part 211. On Federal lands 

where only the surface is Federally-owned, the applicable regulatory program will govern the timing of submission of 

permit applications for ongoing operations. 
 One commenter opposed the deletion of previous Section 741.12 because its removal is premised upon the agency 

successfully delegating to the States with approved cooperative agreements the Secretary's authority to issue permits. 

 OSM has declined to accept this comment. Deletion of previous Section 741.12 is consistent with other changes in 

Subchapter D to separate the SMCRA permit requirement from the MLA mining plan requirement. See above 

discussion of "Permit Application and Mining Plan Review and Approval." 

 

SECTION 740.13(b) - PERMIT APPLICATION PACKAGE. 

 Previous Section 741.13, which corresponds to revised Section 740.13(b), has been revised by adding the word 

"package" to the title. This clarifies that the material submitted by an operator proposing to conduct surface coal 

mining and reclamation operations on Federal lands includes, in addition to the documentation required for a SMCRA 

permit submitted pursuant to the applicable regulatory program, the documentation and information necessary to 

determine compliance with all other requirements for mining on Federal lands. 

 As proposed, previous Section 741.13(a) has been redesignated as Section 740.13(b)(1) and revised to provide that 

permit fees on Federal lands will be determined in accordance with the permit fee criteria of the applicable regulatory 

program. 

 One commenter suggested that previous Section 740.13(b)(1) should reflect circumstances where permit revisions 

and renewals may not require a filing fee. 

 OSM has declined to accept this comment because revised Section 740.13(b)(1) clearly makes the permit fee 

structure of the appropriate regulatory program applicable. Whether or not a fee will be required for permit revisions 

and renewals will depend on the provisions of the applicable regulatory program, provisions which may vary among 

regulatory programs. If the applicable State program is silent on the collection of such fees, however, then none will be 

required for Federal lands in that State. 

 One commenter stated that proposed Section 740.13(b)(1) should provide flexibility to establish permit fees on 

Federal lands which differ from those imposed on non-Federal lands in the same State, since often there can be 

additional administrative responsibilities on Federal lands. 

 OSM considered several alternatives for establishing the fee schedule, including setting higher fees for 

administrative responsibilities on Federal lands that may be in addition to those required on non-Federal lands. OSM 

has decided against higher fees for permit applications on Federal lands because it prefers not to deviate from the 

applicable regulatory program except where there are compelling reasons for doing so. 

 As proposed, revised Section 740.13(b)(2) incorporates and continues the requirement of previous Section 

741.13(b) that the applicant file at least seven copies of the complete permit application package with the regulatory 

authority. 

 One commenter suggested that revised Section 740.13(b)(2) should allow flexibility on the number of permit 

application copies required, since seven may be too many for some regulatory authorities and too few for others. 

 OSM has accepted this comment and has modified Section 740.13(b)(2) to allow for variations in the number of 

copies of permit application packages that will be required where there is a cooperative agreement and the State is the 

regulatory authority. In that instance, the cooperative agreement will specify the required number of copies. However, 

where OSM is the regulatory authority, it will continue to require seven copies because that number is needed for 

distribution to reviewers. 

 Revised Section 740.13(b)(3)(i) and (ii) requires that the permit application package include (1) the information 

required for a permit application under the applicable regulatory program, and (2) the resource recovery and 

protection plan required under 30 CFR Part 211. Providing that the permit application package include the permit 

application required by the applicable regulatory program is consistent with the intent of Subchapter D to apply the
substantive and procedural requirements of the applicable regulatory program on Federal lands. The resource recovery 

and protection plan will be included in the permit application package, where necessary, for reasons discussed earlier 

under "Permit Application and Mining Plan Review and Approval." 

 Section 740.13(b)(3)(ii) has been revised in the final rule to clarify that a resource recovery and protection plan is 

required only for lands containing leased Federal coal, not for all Federal lands. 

 OSM is adopting a new Section 740.13(b)(3)(iii) that requires the permit application package to include the 

supplementary information that was proposed to be required by proposed Section 746.12. Proposed Section 746.12 

listed supplementary information that would assist the regulatory authority in determining compliance with Federal 

laws and regulations other than SMCRA, and executive orders as they relate to surface coal mining and reclamation 

operations on lands subject to Subchapter D. Revised Section 740.13(b)(3)(iii) simplifies the structure of the 

regulations by including all supplementary information requirements for the permit application package in one section. 

 While OSM expects that most of the information needed to determine compliance with Federal laws, regulations 

and orders other than the Act will be included in the SMCRA permit application, those items listed under new Section 

740.13(b)(3)(iii) would be unlikely to be included otherwise. For example, the reference under revised Section 

740.13(b)(3)(iii)(D) to a plan to evaluate properties listed or eligible for listing on the National Register of Historic 

Places indicates OSM's emphasis on the need to preserve worthwhile cultural and historical information, in accordance 

with the National Historic Preservation Act, and to proceed with identification and evaluation in an efficient and timely 

fashion. The Advisory Council on Historic Preservation has supported OSM in this approach to cultural resource 

management. 

 One commenter suggested that proposed Section 746.12 (revised Section 740.13(b)(3)(iii)) should state that the 

information is required before mining plan approval, and that this section is advisory as to including the listed material 

in the initial permit application package. 

 OSM disagrees with the commenter because the information required under revised Section 740.13(b)(3)(iii) is 

important to the timely review and approval of both the permit where OSM is the regulatory authority and, as 

applicable, the mining plan. It will facilitate compliance with Federal laws and regulations other than SMCRA and the 

SMCRA permit application and thereby minimize the burden on the operator. 

 One commenter suggested that OSM should clarify that, in the case of intermingled Federal and non-Federal lands, 

the information showing compliance with NEPA provisions would be required only as it pertained to Federal lands, 

since Secretarial approval of the mining plan is necessary for the Federal lands only. 

 OSM agrees that mining plan approval applies only to Federal lands. In some areas the required analysis can be 

limited to the Federal lands involved. In other cases, such as the evaluation of hydrologic impacts, the analysis could 

extend beyond the Federal lands boundaries. Thus, while the required information must be sufficient to allow OSM to 

fully analyze the environmental effects of mining on Federal lands, it will also be necessary in some instances to 

consider the related non-Federal lands. 

 One commenter stated that proposed Section 746.12(a)(6) should be removed, because establishing a relationship 

between the cumulative hydrologic impact assessment requirements of section 507(b)(11) of SMCRA and the Federal 

Water Pollution Control Act (FWPCA) is in error. 

 Proposed Section 746.12(a)(6) was not intended to establish a relationship between section 507(b)(11) of SMCRA 

and the FWPCA as suggested by the commenter; however, OSM has not included proposed Section 746.12(a)(6) in 

the final rule because it was somewhat confusing. Further, this information is unnecessary, since the FWPCA 

requirements for hydrologic protection, including compliance with water quality standards and effluent limitations, are 

fully covered by the regulatory program under SMCRA. 

 Two commenters stated that proposed Section 746.12 (revised Section 740.13(b)(3)(iii)) should be written to 

indicate clearly the necessary data elements to be included as part of the permit application package. Otherwise, delays 
in the mine plan approval process will result because of differences of opinion as to what is "necessary" supplemental 

information. 

 OSM agrees with the commenter and has provided specific language concerning the information required by this 

section. Revised Section 740.13(b)(3)(iii)(A) requires a description of the affected area of the proposed surface coal 

mining and reclamation operations with respect to (1) increases in employment, population and revenues to public and 

private entities, and (2) the ability of public and private entities to provide goods and services necessary to support 

surface coal mining and reclamation operations. This requirement parallels proposed Section 746.12(a)(1)(i) and will 

assist in preparation of documentation in compliance with the National Environmental Policy Act. 

 Revised Section 740.13(b)(3)(iii)(B) requires an evaluation of impacts to scenic and aesthetic resources including 

noise on the surrounding area due to the proposed surface coal mining and reclamation operation. This requirement 

parallels proposed Section 746.12(a)(1)(iii) and will also be used to assist in preparation of documentation in 

compliance with NEPA. 

 Revised Section 740.13(b)(3)(iii)(C) requires a statement, including maps and ownership data, as appropriate, of 

any cultural or historical site listed on the National Register of Historic Places within the affected area of the proposed 

surface coal mining and reclamation operation. Additionally, Section 740.13(d)(3)(iii)(D) requires a statement of the 

classes of properties of potential significance within the disturbed area, and a plan for the identification and treatment, 

in accordance with 36 CFR Part 800, of properties significant and listed or eligible for listing on the National Register 

of Historic Places within the disturbed area of the proposed surface coal mining and reclamation operation. This 

information will assist in insuring compliance with the National Historical Preservation Act of 1976, the Archeological 

Resources Protection Act of 1977 and other related requirements pertaining to cultural and historic resources. These 

requirements roughly parallel proposed Section 746.12(a) (2) and (3) as revised based upon discussions with the 

Advisory Council on Historic Preservation. 

 Revised Section 740.13(b)(3)(iii)(E) requires a description of the probable changes in air quality resulting from the 

mining operation and any necessary measures to comply with the prevention of significant deterioration limitations, 

State implementation plans for air quality protection and any other State or Federal Laws. These requirements parallel 

requirements of proposed Section 746.12(a)(5) and will provide information to determine compliance with the Clean 

Air Act. 

 Revised Section 740.13(b)(3)(iii)(F), (G), and (H) require information pertaining to fish and wildlife resources to 

assist in evaluating compliance with the Fish and Wildlife Act of 1958, the Endangered Species Act, the Fish and 

Wildlife Coordination Act, and other related requirements. These sections require (1) a description of the location, 

acreage, and condition of important habitats of selected indicator species located within the affected area of the 

proposed surface coal mining and reclamation operation, (2) a description of active and inactive nests and prey areas of 

any bald or golden eagles located within the affected areas of the proposed surface coal mining and reclamation 

operations, and (3) a description of all threatened and endangered species and their critical habitats located within the 

affected area of the proposed surface coal mining and reclamation operations. Similar requirements relating to fish and 

wildlife were included in proposed Section 746.12(a)(4) 

 OSM has deleted previous Section 741.13(c)(1) and (2), as proposed. This section, which described the required 

contents of a permit application, is unnecessary in the final rules because equivalent provisions will be contained in the 

applicable regulatory program. 

 OSM has adopted the proposed redesignation of previous Section 741.13(c)(3), concerning Federal lessee 

protection, as revised Section 740.13(b)(4) and added language to clarify that it does not apply to TVA-owned lands. 

See section 701(4) of the Act. 

 Previous Section 741.14, which addressed permitting requirements for special operations, has been removed, as 

proposed, because similar requirements will be included in each regulatory program. 
 Previous Sections 741.15(a), (b)(1), (b)(3) and (b)(4) have been removed, as proposed, because similar 

requirements will be included in each regulatory program. 

 

SECTION 740.13(c) PERMIT REVIEW AND PROCESSING. 

 OSM has adopted revised Section 740.13(c), essentially as proposed; it provides that the permit processing 

requirements of the applicable regulatory program will be used to process permits on Federal lands, subject to the 

additional requirements specified under revised Sections 740.13(c)(1) through 740.13(c)(9). 

 OSM has adopted, as proposed, revised Section 740.13(c)(1), "Permit terms and conditions," which provides that 

any applicable requirements of other Federal laws and regulations, including the Mineral Leasing Act, must be 

reflected in the terms and conditions for permits. This section continues the requirement of previous Section 

741.15(b)(2) that no extension of a permit term may be granted if the effect of that extension would be to extend the 

term of a Federal coal lease beyond the period allowed for diligent development under that lease and section 7 of the 

Mineral Leasing Act. 

 One commenter asked OSM to clarify whether it is the State's responsibility to incorporate the terms of the lease 

and other requirements of the MLA and other Federal laws in the SMCRA permit and, if so, who would enforce such 

terms and requirements. 

 While States with cooperative agreements may independently review and approve permit applications on Federal 

lands, these regulations prohibit the commencement of operations that are subject to mining plan approval until the 

Secretary has approved such plan. In order to ensure compliance with non-SMCRA matters (e.g., MLA, NEPA, lease 

terms and stipulations, etc.), the Secretary may impose additional requirements for mining in his approval of the mining 

plan. OSM will rely on the States with cooperative agreements to assist in enforcing these additional requirements as 

part of the State's inspection and enforcement program. Each cooperative agreement will detail how these 

responsibilities will be handled since the precise roles of OSM and the States will vary from State-to-State. 

 Previous Section 741.16, which required permits to reflect local and regional conditions, has been removed, as 

proposed, since its purpose will be accomplished by incorporation of State and Federal programs into the Federal lands 

program. Each State or Federal program is mandated by the Act to take regional and local conditions into account. 

 Revised Section 740.13(c)(2), "Criteria for permit approval or denial," corresponds to previous Section 741.17. As 

proposed, the introductory paragraph of previous Section 741.17 (which required that the Director make the written 

findings required by 30 CFR Part 786 regarding permit applications) and all of previous Section 741.17(b) (which 

required that the applicant satisfy all applicable requirements for approval of permits under 30 CFR Part 786) have 

been removed because similar provisions will have been included in the applicable regulatory program. 

 One commenter suggested that proposed Section 740.13(c)(2) and (7) allow the regulatory authority to approve a 

permit application if it is in accordance with the requirements of the applicable regulatory program (rather than the 

requirements of Part 740) and process the approval within the time frames of that program. 

 OSM disagrees with the commenter because Parts 740-746 impose some requirements on the regulatory authority 

in addition to those of the applicable regulatory program. For example, where OSM is the regulatory authority, under 

revised Section 740.13(c)(1), the SMCRA permit terms and conditions must reflect requirements of other Federal laws 

and regulations as they apply to the lands in question. Another example is the required consultation with Federal land 

management agencies, which may affect decisions on permits. The precise requirements where a State is the regulatory 

authority will be addressed in the applicable cooperative agreements. Thus, this section has been revised to indicate 

that either the requirements of Part 740 or the cooperative agreement will apply to permit approval or denial. 

 With regard to the second point made by the commenter, it will not always be possible to approve a permit within 

the time frames in the State programs due to the additional requirements of Subchapter D. However, OSM believes 

that any such delays will be minimal. 
 As proposed, previous Section 741.17(a) has been removed because Subchapter D does not require that the 

Secretary approve the mining plan prior to approval of the permit application. 

 One commenter stated that previous Section 741.17(a) should not be deleted because, "even though actual 

commencement of mining on Federal lands would not be allowed until the Secretary has approved the mining plan, this 

change would allow the State regulatory authority to get out ahead of the Secretary and would prevent the Secretary 

from making a meaningful determination of the consistency of the proposed mining activity, as described in the permit 

application, with the plan of operation for the life of the mine." 

 OSM has rejected this comment and has deleted previous Section 741.17(a), as proposed. As discussed above, 

under "Permit Application and Mining Plan Review and Approval," the Secretary is confident that he will be able to 

ensure consistency between the approved mining plan and the permit under the revised Federal lands program. 

 As proposed, previous Section 741.17(c), which required the Director and the State regulatory authority to concur 

in permit approval where there is a State-Federal cooperative agreement, has been removed. 

 One commenter opposed the deletion of previous Section 741.17(c), noting that OSM has not explained the basis 

for this deletion and that such deletion (insofar as it severed permit approval from mining plan approval) was 

inconsistent with section 523 of the Act. 

 While OSM did not include a lengthy explanation of the proposed deletion of previous Section 741.17(c), this 

change was proposed because of, and clearly is consistent with, the overall revisions to Subchapter D in allowing 

States with cooperative agreements an independent role in the approval of SMCRA permit applications on Federal 

lands. 

 OSM has, as proposed, revised previous Section 741.17(d) and redesignated it Section 740.13(c)(2). Revised 

Section 740.13(c)(2) provides that SMCRA permit applications for mining on Federal lands may not be approved 

unless they are in accordance with the requirements of the applicable regulatory program and revised Part 740 or a 

cooperative agreement, as applicable. Previous Section 741.17(d) had required permit applicants to comply with, 

among other things, the Mineral Leasing Act. The effect of the revision is to ensure continued compliance with all 

Federal laws and regulations applicable to permit applications, but to separate permit approval from mining plan 

approval, since the latter is a requirement of the Mineral Leasing Act. 

 OSM is adopting, as proposed, revised Section 740.13(c)(3), "Public participation in permit review process," which 

corresponds to previous Section 741.18. Revised Section 740.13(c)(3) provides that the matters already covered by 

public hearings held under the MLA need not be readdressed in SMCRA permit hearings, and may be made a part of 

the record of hearings held on the permit application. The reference to the public participation provisions in 30 CFR 

786.11 through 786.15 has been removed since the public participation requirements of the applicable regulatory 

program will apply. 

 Two commenters opposed reliance on the public participation requirements of approved State regulatory programs 

because any appeal of a decision on a permit application would be to the State authority where a cooperative 

agreement is in place. As a result, citizens would not retain rights that they now have to utilize the Federal appeal 

process. These commenters also believe that State review of the Federal aspects of the permitting decision would be 

inconsistent with section 523 of the Act. Thus, these commenters opposed the deletion of the cross-reference in 

previous section 741.18 to the public participation provisions of 30 CFR 786.11 through 786.15. 

 OSM has rejected this comment because States with cooperative agreements will independently review permit 

applications on Federal lands in accordance with the requirements of their approved State programs. Since the 

approved State program will contain provisions for public participation, including appeal of decisions on the permit, 

OSM believes that the proper avenue for appeals should be through the State. Such appeals will be limited, however, 

to SMCRA matters and not to matters concerning non-delegable responsibilities of the Secretary, such as decisions 

relating to the Secretary's approval of the mining plan. Appeals of non-delegable decisions will be to the Federal 

administrative process. 
 Proposed Section 740.13(c)(4), "Availability of information," would have retained the requirement of previous 

Section 741.19(a)(2) that information exempt from disclosure under the Freedom of Information Act (5 U.S.C. 

552(b)) shall be held in confidence by the Office in accordance with 43 CFR Part 2. The proposed provision has not 

been adopted previous Section 741.19 has been removed since similar requirements will be included in the applicable 

regulatory program. 

 One commenter stated that previous Section 741.19, which required OSM and the State authority to make available 

for public inspection information in permit applications, should not be deleted since similar requirements in approved 

State programs cannot be imposed upon OSM. 

 OSM has declined to accept this comment and has adopted the revision, as proposed. Contrary to the assertion of 

the commenter, OSM , as the regulatory authority in the absence of a cooperative agreement, will follow the 

substantive and procedural requirements of the applicable regulatory program, including those relating to the public 

availability of information in permit applications. See revised Section 740.11(b). 

 Revised Section 740.13(c)(4), "Permit review processing for operations on lands administered by a Federal land 

management agency," retains, with minor revisions, the requirement of previous Section 741.20 that a copy of the 

permit application package be transmitted to the Forest Service for review. The revision in the title makes revised 

Section 740.13(c)(4) applicable to all Federal land management agencies, not just the Forest Service. The language 

concerning the consent of the Forest Service to the approval of the permit application has been removed because 

revised Section 740.13(c)(5) provides an adequate process for Federal land management agency permit review and 

consultation. 

 One commenter stated that proposed Section 740.13(c)(5) violates section 7(c) of the Federal Coal Leasing 

Amendments Act by deleting the Forest Service's authority to consent to (not just simply review) permits. 

 OSM disagrees with the commenter. Section 7(c) of the Federal Coal Leasing Amendments Act requires: (1) The 

Secretary's approval of an operation and reclamation plan prior to an operator taking any action on a leasehold which 

might cause a significant disturbance and (2) the consent of any other Federal agency having jurisdiction over the land 

involved. The Mineral Leasing Act and its subsequent amendments under the Federal Coal Leasing Amendments Act 

apply to the approval of mining plans for operations involving leased Federal coal, rather than to all SMCRA permits. 

Since revised Section 740.13(c)(4) applies only to the SMCRA permit and since there are no consent requirements 

under SMCRA, OSM cannot require the consent of the Federal land management agency with respect to the SMCRA 

permit; consent of other Federal agencies with respect to the mining plan, however, is provided under revised section 

746.13(d). 

 However, OSM recognizes the right of Federal land management agencies to review and comment on permit 

applications and to have their comments included in the record of permit decisions with respect to operations on 

Federal lands within their jurisdiction. This is provided under section 702(b) of SMCRA, which states that -- 

 Nothing in this Act shall affect in any way the authority of the Secretary or the heads of other Federal agencies 

under other provisions of law to include in any lease, license, permit, contract, or other instrument such conditions as 

may be appropriate to regulate surface coal mining and reclamation operations on land under their jurisdiction. 

 The right of Federal land management agencies to have their comments included in the record of permit decisions is 

provided for under revised Section 740.13(c)(5) as discussed below. 

 Revised Section 740.13(c)(5), "Consultation with other Federal agencies," which corresponds with previous 

Section 741.21(a)(1), requires that decisions on permits for operations on Federal lands be made after consultation 

with the Federal land management agency or BLM, as applicable. As noted above, OSM has modified proposed 

Section 740.13(c)(6) to require the regulatory authority to include the comments of the Federal land management 

agency in the record of decisions regarding the permit application. The remainder of previous Section 741.21(a)(1) and 

(2), which concerned the review of permit applications, has been removed because similar requirements will be 

included in the applicable regulatory program. 
 OSM is adopting, as proposed, revised Section 740.13(c)(6), "Permit processing schedule," which revises previous 

Section 741.21(a)(3) by adopting the schedule for processing permit applications which is included in the applicable 

regulatory program. Revised Section 740.13(c)(6) recognizes, however, that, with respect to permit applications for 

mining on Federal lands, it may not always be possible to meet the schedules of the applicable regulatory programs due 

to the numerous other Federal laws and regulations with which the Department must comply. Thus, this provision 

allows, where necessary, a reasonable extension of the schedule. 

 As proposed, OSM is deleting previous Section 741.21(a)(4), "Issuance of decision," because similar requirements 

will be included in the regulatory program. 

 Revised Section 740.13(c)(7), "Determination of operator compliance with the Act," retains in full the requirements 

of previous Section 741.21(b) that OSM determine whether the operator is in violation of laws and regulations 

pertaining to air or water environmental protection prior to issuance of a permit. OSM's intent in proposing to retain 

this requirement was to ensure that OSM determinations made pursuant to this provision are subject to Federal, rather 

than State, administrative appeals. Final revised Section 740.13(c)(7) refers only to the Federal administrative review 

of such determinations, because the other requirements of previous Section 741.21(b) must be included in the 

applicable regulatory program. 

 Revised Section 740.13(c)(8), "Administrative review of decisions on permit applications," retains the requirements 

of previous Section 741.21(a)(5) that permit decisions by OSM on Federal lands be subject to Federal administrative 

appeals. 

 Several commenters suggested that OSM clarify that the administrative review of decisions on permit applications 

under cooperative agreements will be subject to the State administrative review process. 

 OSM agrees with these commenters' suggestion and has added a sentence to revised Section 740.13(c)(8) stating 

that "[w]here the State is the regulatory authority under a cooperative agreement, the final decision on a permit 

application is subject to administrative review as provided under the approved State program." 

 Revised Section 740.13(c)(9), "Bonds and insurance required for issuance of permits," continues, with minor 

revisions, the requirement of previous Section 741.22 that an applicant/permittee must file with the regulatory 

authority, a performance bond, proof of liability insurance and a Federal lessee protection bond. 

 Previous Section 741.23, "Renewal of permits," provided for successive renewal of permits for areas within the 

boundaries of an approved permit, provided such renewals do not extend beyond the period allowed for diligent 

development under the Mineral Leasing Act. OSM has removed this section because provisions for renewal of permits 

will be included in the applicable regulatory program, while compliance with all of the requirements of the Mineral 

Leasing Act will be ensured elsewhere in these rules. See revised Section 740.13(c)(1). 

 One commenter stated that deletion of previous Section 741.23 would be improper because it would make 

unenforceable the restriction against permit renewals encompassing land beyond previously permitted boundaries. The 

commenter stated that this restriction must be explicit in the Federal lands program, and that its enforcement cannot 

depend upon the good will of the States, particularly as the restriction affects Federal lands. 

 OSM disagrees with the commenter. The Act and any applicable regulatory program require that extension to the 

area covered by a permit, except for incidental boundary changes, must be made by application for a new permit. See 

section 511(a)(3) of the Act. 

 Previous Section 741.24 (a) through (c), which concerned the review of approved permits and of permit revisions, 

have been removed as proposed, because counterpart provisions must be included in each regulatory program. 

 
SECTION 740.13(d) - REVIEW OF PERMIT REVISIONS. 

 OSM is adopting, as proposed, revised Section 740.13(d), "Review of permit revisions," which revises previous 

Section 741.24(d) to provide that, where the State is the regulatory authority, it must inform OSM of each request for 

a permit revision with respect to operations on lands containing leased Federal coal. OSM will review each permit 

revision in consultation with BLM and the Federal land management agency, as appropriate, to determine whether the 

revision constitutes a "mining plan modification" requiring Secretarial approval under the criteria in revised Section 

746.18. 

 One commenter stated that proposed Section 740.13(d)(1) might be better placed in proposed Part 746, since 

proposed Section 740.13(d)(1) relates to actions that affect the mining plan. 

 OSM has rejected this comment because modifications of a mining plan originate primarily through changes 

occurring during the term of an approved permit and within the boundaries of an approved permit area. Revised 

Section 740.13(d)(1) will provide the necessary bridge between actions on the permit and any resulting requirement for 

corresponding actions on the mining plan. 

 Several commenters stated that OSM should clarify further how it intends to handle permit revisions on Federal 

lands. The commenters suggested that proposed Section 740.13(d)(1) should be limited to lands containing leased 

Federal coal and those permit revisions which may require Secretarial review as a mining plan modification under 

revised Section 746.18(d). One of the commenters stated this would facilitate the permit revision process and cut 

down on required consultations. 

 OSM has accepted these suggestions and has modified proposed Section 740.13(d) to limit its applicability to lands 

containing leased Federal coal. However, OSM has added a new Section 740.13(d)(3) requiring that the regulatory 

authority consult with the Federal land management agency to determine whether any permit revision will adversely 

affect other Federal resources, and whether the revision is consistent with that agency's land use plans. This will ensure 

that the Federal land management agency is given an opportunity to review and comment on decisions that affect its 

interests. 

 One commenter stated that OSM should clarify OSM's classifications for revisions. Specifically, the commenter 

asked (1) whether the regulatory authority needed the Secretary's concurrence on revisions determined to constitute 

mining plan modifications and (2) how the Secretary's review will correspond to the regulatory authority's time frame 

for review. 

 Revised Section 740.13 does not provide specific criteria for what constitutes a mining plan modification because 

this is specifically defined in revised Section 746.18(d). If the permit revision would also constitute a modification of 

the mining plan, then the Secretary must issue a new approval or disapproval for the mining plan modification in 

accordance with the Mineral Leasing Act. With respect to the Secretary's time schedule for processing mining plan 

modifications, OSM anticipates that the schedule will correlate with the time frame and procedures used for the initial 

review of mining plan, since the same procedures must be followed. 

 

SECTION 740.13(e) - TRANSFER, ASSIGNMENT OR SALE OF RIGHTS. 

 As proposed, previous Section 741.25(a) has been deleted because a counterpart provision must be included in each 

regulatory program. 

 Previous Section 741.25(d), which required the Director to authorize the Regional Director to grant the application 

if he or she approves the transfer, sale or assignment, has also been deleted. This provision was consistent with OSM's 

reorganization, as discussed earlier in this notice. 

 Revised Section 740.13(e), "Transfer, assignment or sale of rights," corresponds to previous Section 741.25 (c) and 

(e). Revised Section 740.13(e)(1) requires consultation with Federal land management agencies and BLM prior to the 

regulatory authority approving applications for transfer, assignment or sale of rights granted under a permit, while 
previous Section 741.25(c) required the concurrence of these agencies. OSM believes that consultation, not 

concurrence, is sufficient. Revised Section 740.13(e)(2) continues the requirement of previous Section 741.25(e) that 

approval of a transfer, assignment or sale of rights granted under a permit shall not be construed to constitute a 

transfer or assignment of leasehold interests. 

 

SECTION 740.13(f) - SUSPENSION OR REVOCATION OF PERMITS. 

 Revised Section 740.13(f), "Suspension or revocation of permits," continues the requirements of previous Section 

741.26 with regard to the suspension or revocation of permits. The words "suspension" has been added to the title to 

more precisely reflect its subject. In response to a commenter, a sentence has been added to revised Section 

740.13(f)(2) to clarify that this section does not release the Federal lessee from any diligent development or continued 

operation requirements of 30 CFR Part 211. 

 One commenter stated that the applicability of proposed Section 740.13(f)(2) should be limited to those lands 

containing leased Federal coal. 

 OSM has accepted this comment and has modified proposed Section 740.13(f)(2) by inserting the phrase 

"containing leased Federal coal" after the phrase "Federal lands." 

 Another commenter stated that proposed Section 740.13(f)(2) might be better placed in proposed Part 746, since 

proposed Part 746 deals with requirements of the Mineral Leasing Act for lands containing leased Federal coal. 

 OSM rejected this comment, preferring to retain revised Section 740.13(f)(2) as proposed because its purpose is 

directed specifically at actions regarding the permit rather than at the mining plan. 

 

SECTION 740.15 - BONDS ON FEDERAL LANDS. 

 As proposed, those portions of previous Part 742 that must be included in any regulatory program have been 

removed, while those that are unique to Federal lands have been incorporated into revised Section 740.15. Persons 

subject to the requirements for bonding on Federal lands must comply with both the applicable regulatory program 

and the additional requirements of revised Section 740.15. 

 OSM has renumbered previous Part 742 as revised Section 740.15 and deleted the term "liability insurance" from 

the title because requirements for liability insurance must be included in the applicable regulatory program. 

 As proposed, previous Sections 742.1 and 742.4 have been removed. 

 OSM has moved the definitions of "Federal lease bond" and "Federal lessee protection bond" to revised Section 

740.5 in order to group all definitions in Subchapter D in the same section. 

 

SECTION 740.15(a) - FEDERAL LEASE BONDS. 

 As proposed, OSM has deleted the first sentence of previous Section 742.11(a), which stated that "[A]ll operators 

on any Federal lease shall have a Federal lease bond." This is already a requirement of 43 CFR Part 3474, making it 

superfluous here. In addition, the reference to 43 CFR Part 3504 in previous Section 742.11(a) has been changed in 

revised Section 740.15(a) to 43 CFR Part 3474, as proposed, to reflect the current regulations governing lease bonds 

for leased Federal coal. With minor editorial revisions, the remainder of previous Section 742.11(a) and all of previous 

Section 742.11(b) have been retained under revised Section 740.15(a). 

 As proposed, previous Section 742.11(c) has been removed to conform to the regulations of the Bureau of Land 

Management, at 43 CFR Part 3400, which do not require that a lease bond include a performance bond. 

 
SECTION 740.15(b) - PERFORMANCE BONDS. 

 As proposed, previous Section 742.12(a), which provided that persons conducting surface coal mining and 

reclamation operations on Federal lands shall comply with the performance bond requirements of 30 CFR 800-808, has 

been removed because the applicable regulatory program must contain a similar requirement. 

 One commenter expressed concern that OSM, by removing previous Section 742.12(a), was deleting the regulation 

concerning the posting of a performance bond. The commenter stated that, if Section 740.15(c)(4) were to stand as 

proposed, there may not be sufficient monetary incentive for the operator to complete reclamation, or sufficient bond 

resources for the State to complete reclamation if the operator does not do so. 

 OSM is not deleting the performance bond requirements as stated by the commenter. The applicable regulatory 

program must include performance bond requirements in accordance with the Act and those requirements apply on 

Federal lands. 

 Previous Section 742.12(b) has been renumbered as Section 740.15(b) and revised to provide that the performance 

bond required for operations on Federal lands shall be payable to the United States and, where a cooperative 

agreement is in force, the State. Thus, in the absence of a cooperative agreement, the performance bond will be 

payable only to the United States; where the Department and the State have entered into a cooperative agreement, the 

performance bond will be payable to both the United States and the State. OSM considered requiring that the 

performance bond be payable only to the State where the State is the regulatory authority under a cooperative 

agreement, but rejected this option because of the need to ensure that protection for Federal lands is continued if the 

cooperative agreement is suspended or terminated and OSM becomes the regulatory authority. 

 One commenter stated that it is not clear under proposed Section 740.15(b) that the bond must be payable to both 

the State and the United States (as the preamble says) under a cooperative agreement. 

 OSM agrees with the commenter that the proposed wording was ambiguous and is modifying proposed Section 

740.15(b) to clarify that where the State is the regulatory authority, the performance bond shall be payable to both the 

United States and the State. Where OSM is the regulatory authority, the bond will be payable only to the United 

States. 

 Several commenters stated that the performance bond should be payable only to States under cooperative 

agreements, because having the bond payable to the United States as well complicates the release and forfeiture of the 

bond. 

 As stated in the proposed rules, OSM must ensure that the interests of the Federal government are protected, 

particularly in the event of an interruption in the effectiveness of the cooperative agreement with the State. OSM does 

not believe the potential complications described by the commenters outweigh OSM's obligation to ensure protection 

of the Federal interests. 

 

SECTION 740.15(c) - FEDERAL LESSEE PROTECTION BONDS. 

 As proposed, revised Section 740.15(c) continues the provisions of previous Section 742.13. 

 One commenter suggested that proposed Section 740.15(c)(1) should be revised to clarify that the consent 

requirement is not intended for a permit issued and authorized by the United States Department of Agriculture, Forest 

Service. The commenter pointed out that permits issued by the Forest Service for uses of the surface for purposes 

other than coal mining operations do not carry the right of transfer, sale or consent to other uses. These rights are 

retained by the Forest Service. 

 OSM has accepted this comment and is modifying proposed Section 740.15(c)(1) by adding a sentence at the end 

of this section stating that it does not apply to permits or licenses for the use of the surface that do not convey to the 

permittee or licensee the right of transfer, sale or consent to other uses. 
 Previous Sections 742.14, 742.15, 742.16, 742.17, and 742.19 have been removed, as proposed, since similar 

requirements will be included in the applicable regulatory program. 

 

SECTION 740.15(d) - RELEASE OF BONDS. 

 As proposed, revised Section 740.15(d)(1) and (2) retain, with minor editorial revisions for clarity, the provisions of 

previous Section 742.18(a), (c), and (d). 

 Previous Section 742.18(b) has been removed because similar requirements will be included in each regulatory 

program. 

 One commenter suggested that the criteria for Federal lease bond release should be stated in Section 740.15(d)(1). 

 OSM has rejected this comment because the Bureau of Land Management is responsible for the release of Federal 

lease bonds under the provisions of 43 CFR Part 3400 and 30 CFR Part 211, and OSM considers it unnecessary to list 

those requirements under revised Section 740.15(d)(1). As discussed below, however, these requirements are 

referenced in revised Section 740.15(d)(1). 

 One commenter stated that, because reclamation of a mine is not considered when establishing a lease bond, 

concurrence from OSM (with respect to reclamation) is not necessary when releasing it. Thus, the commenter 

suggested that Section 740.15(d)(1) be rewritten to delete OSM. 

 OSM has accepted the commenter's suggestion and has deleted from Section 740.15(d)(1) the requirement that 

OSM concur in the release of the lease bond as well as the word "reclamation" since the lease bond is not concerned 

with SMCRA reclamation requirements. 

 Two commenters stated that Section 740.15(d)(2) is unnecessary inasmuch as notice of the release of the bond is 

required by the Act. 

 OSM agrees with the commenter and is deleting proposed Section 740.15(d)(2). The applicable regulatory program 

must provide for public notice and an opportunity for a hearing by persons with a valid interest which might be 

adversely affected by release of the bond. See section 519 of the Act, 30 U.S.C. 1269. 

 PROPOSED SECTION 740.15(d)(3) HAS BEEN RENUMBERED AS SECTION 740.15(d)(2). 

 Another commenter stated that proposed Section 740.15(d)(2) is unclear as to whether Federal concurrence in 

State regulatory authority performance bond release is required. OSM has added a new section 740.15(d)(3) to clarify 

that Federal concurrence is required in State regulatory performance bond release only when the surface coal mining 

and reclamation operations are subject to an approved mining plan. OSM believes Federal concurrence is appropriate 

in such situations to ensure that reclamation is completed consistent with the approved mining plan for non-SMCRA 

matters. 

 

SECTION 740.15 - INSPECTION, ENFORCEMENT AND CIVIL PENALTIES. 

 As proposed, the requirements of previous Part 743 with respect to inspection, enforcement and civil penalties on 

Federal land have been revised and incorporated under revised Section 740.17. 

PREVIOUS SECTION 743.1, "Scope," and Section 743.2, "Objective," have been removed. 

 Previous Section 743.4, "Responsibilities," has also been removed because responsibilities for inspection, 

enforcement and civil penalties on Federal lands are adequately described under revised Section 740.4 

 
SECTION 740.17(a) - GENERAL REQUIREMENTS. 

 As proposed, OSM has retitled previous Section 743.11 as "General requirements" and renumbered it as revised 

Section 740.17(a). Revised Section 740.17(a)(1) provides that, where OSM is the regulatory authority, 30 CFR Parts 

840, 842, 843 and 845, rather than the requirements of the applicable regulatory program shall govern inspection, 

enforcement and civil penalty activities with respect to surface coal mining and reclamation operations on lands subject 

to Subchapter D. This is a departure from the overall thrust of the revisions of Subchapter D, which is to apply 

uniform substantive and procedural requirements on both Federal and non-Federal lands. OSM believes that utilization 

of its own inspection, enforcement and civil penalty provisions, which are familiar to its inspection and enforcement 

staff, is more appropriate than using different State inspection, enforcement and civil penalties provisions in each State. 

 Revised Section 740.17(a)(2) provides that, where the State is the regulatory authority under a cooperative 

agreement, the State program shall govern its inspection, enforcement and civil penalty activities on lands subject to 

Subchapter D, while OSM will utilize the requirements of 30 CFR Parts 842, 843 and 845 in its oversight role. 

 Revised Section 740.17(a)(3) limits OSM's inspection, enforcement and civil penalty authority with respect to 

exploration on Federal lands to lands not covered by 30 CFR Part 211. These lands include Federal lands entrusted to 

or managed by the Tennessee Valley Authority and Federal lands inside the permit area after the commencement of 

surface coal mining operations. This will eliminate overlap and duplication between the requirements of Subchapter D 

and 30 CFR Part 211. Revised 30 CFR Part 211 contains specific requirements for the conduct of inspection, 

enforcement and civil penalty activities with respect to exploration on Federal lands and encompasses the requirements 

of both the Mineral Leasing Act and SMCRA. 47 FR 33714 (July 30, 1982). OSM, therefore, will not assert 

overlapping authority of its own in this area. 

 One commenter stated that proposed Section 740.17 (a)(2) and (a)(3) are improper because OSM has specific 

inspection and enforcement duties on Federal lands in addition to its oversight responsibilities, and because regardless 

of whether the Federal lands overlie non-leased or leased Federal coal, OSM is the regulatory authority under sections 

512 and 523 of the Act. 

 OSM disagrees with the commenter. As stated under the discussion of revised Section 740.4(b)(5), the Secretary 

believes that delegation to States with cooperative agreements of the responsibility for inspection and enforcement on 

Federal lands is consistent with section 523(c) of the Act. Since States with cooperative agreements will have 

regulatory programs that the Secretary has approved as consistent with the Act, the Secretary believes that it is the 

State program that should be relied upon for implementation of the Act's inspection and enforcement requirements. 

The Secretary's oversight will ensure that the State program is properly applied to surface coal mining and reclamation 

operations on both Federal and non-Federal lands in all such States. 

 

SECTION 740.17(b) - RIGHT OF ENTRY. 

 As proposed, previous Section 743.11 (a), (b) and (c), with minor revisions, continue under revised Section 

740.17(b), entitled "Right of entry," as revised Section 740.17(b) (1), (2) and (3). 

 

SECTION 740.17(c) - INSPECTIONS. 

 OSM has adopted the proposed deletion of the first sentence of previous Section 743.12(a), which required that 

inspections be conducted under 30 CFR Parts 840 and 842, because revised Section 740.17(a) requires inspections to 

be conducted according to 30 CFR Parts 840 and 842 or their regulatory program counterparts. With revisions, the 

remaining portion of previous Section 743.12(a) will be incorporated into revised Section 740.17(c), as proposed. 

Revised Section 740.17(c) also incorporates the requirements of the first sentence of previous Section 743.12(b)(1) 

with respect to coordination by OSM of inspections by Federal agencies. This responds to a commenter who stated 

that OSM should not delete the requirement in previous Section 743.12(b)(1) giving OSM authority to coordinate 

inspections, since this provision is necessary to avoid unnecessary sequential Federal inspections, and assures that 

OSM remains aware of an operator's performance under other Federal statutes that may bear on the operator's 

performance under SMCRA. The remaining portion of previous Section 743.12(b)(1) has been deleted, as proposed. 
 As proposed, previous Section 743.12(b)(2) has been deleted because similar requirements are included in 30 CFR 

Part 842 with respect to inspections by OSM, and the State regulatory program with respect to inspections by the 

State regulatory authority under a cooperative agreement. 

 Previous Section 743.13 has been removed, as proposed, because the requirements of this section are provided for 

under revised Section 740.17(a). 

 

SECTION 740.19 - PERFORMANCE STANDARDS. 

 As proposed, those portions of previous Part 744 that must be included in any regulatory program have been 

removed. Revised Section 740.19, entitled "Performance standards," retains those requirements of previous Part 744 

that are unique to Federal lands. Persons conducting surface coal mining and reclamation operations on Federal lands 

will be subject to the performance standards of the applicable regulatory program and the additional requirements of 

revised Section 740.19. 

 As proposed, PREVIOUS SECTION 744.1, "Scope," has been removed. 

 Previous Section 744.11, which concerned performance standards for exploration, has been removed, as proposed, 

because the Department's regulations at 30 CFR Part 211 provide performance standards for exploration on Federal 

lands subject to the requirements of the Mineral Leasing Act and because the performance standards of the applicable 

regulatory program will be applied to exploration on other Federal lands. 

 

SECTION 740.19(a) - OPERATIONS AND RECLAMATION. 

 OSM has adopted revised Section 740.19(a)(1), which requires surface coal mining and reclamation operations on 

Federal lands to comply with the performance standards of the applicable regulatory program, rather than with the 

performance standards of 30 CFR Chapter VII, Subchapter K, as required by previous Section 74.12(a). Thus, a single 

set of performance standards will be applicable both on and off Federal lands within a State whether or not a 

cooperative agreement is in force, and operators of mines containing mixed Federal and non-Federal lands will not be 

required to comply with two different sets of performance standards. 

 Except for the addition of the reference to the 30 CFR Part 211 regulations, OSM has adopted, as proposed, 

revised Section 740.19(a)(2), which corresponds to previous Section 744.12(a). Revised Section 740.19(a)(2) requires 

that surface coal mining and reclamation operations on lands containing leased Federal coal be conducted in 

accordance with the terms, conditions and stipulations of the lease issued under the Mineral Leasing Act and its 

implementing regulations at 30 CFR Part 211, and the mining plan. This responds to one commenter who stated that 

the previous language in Section 744.12(a) should be retained to give notice to operators on Federal lands of the 

separate MLA requirements found in 30 CFR Part 211 which are not part of the Secretary's regulations implementing 

section 523 of the Act. 

 Another commenter stated that, as worded, proposed Section 740.19(a) conveyed the impression that the mining 

plan requirement is not a part of the Mineral Leasing Act and suggested rewording Section 740.19(a) to clarify that the 

mining plan requirement is part of the MLA. 

 OSM has rejected this comment because the term "mining plan" has been adequately defined under revised Section 

740.5 to be the plan for mining leased Federal coal required by the Mineral Leasing Act and no further elaboration is 

needed under Section 740.19(a). 

 As proposed, previous Section 744.12(b) has been removed. 

 One commenter opposed the deletion of previous Section 744.12(b), because it is the responsibility of the Secretary 

to reconcile the mineral utilization and conservation dictates of section 515(b)(1) of the Act and the diligent 

development requirements of the Mineral Leasing Act, a function which the State cannot perform. Therefore, the 

commenter stated, it is improper to rely on a State regulatory authority for performance of this function. 
 OSM sees no inherent conflict in allowing State regulatory authorities to implement the requirements of section 

515(b)(1) of the Act where leased Federal coal is involved. Conflicts that may arise in specific cases will be resolved in 

the mining plan approval process. 

 As proposed, previous Section 744.13(a), which concerned temporary abandonment of operations, has been 

removed because similar provisions must be included in each regulatory program. 

 

SECTION 740.19(B) - COMPLETION OF OPERATIONS AND ABANDONMENT. 

 As proposed, previous Section 744.13(b), which described the requirements for permanent abandonment of coal 

exploration and surface coal mining and reclamation operations, has been removed. The Department's regulations at 30 

CFR Part 211 cover abandonment of exploration activities on lands containing leased Federal coal. Abandonment of 

exploration activities on other Federal lands will be subject to the requirements of the applicable regulatory program, 

as will abandonment of all surface coal mining and reclamation operations subject to Subchapter D. 

 As proposed, previous Section 744.13(c)(2), which concerned the notice of abandonment, has been renumbered as 

revised Section 740.19(b)(1) and revised to require that bonds shall be released in accordance with revised Section 

740.15(d). 

 Previous Section 744.13(d) has been removed, as proposed, because the requirements of this section will be 

provided under revised Section 740.15(d). 

 OSM has adopted proposed Section 740.19(b)(2), which pertains to cessation or abandonment of mining 

operations where there is a Federal lease bond, with minor modifications. 

 One commenter suggested that revised Section 740.19(b)(2)(ii) should not require inspections by OSM with respect 

to Federal lease bonds. 

 OSM agrees. Revised Section 740.19(b)(2)(ii) does not require OSM involvement in joint inspections to determine 

compliance with applicable requirements, because OSM has no responsibility for Federal lease bonds. Similarly, the 

reference to compliance with the requirements of the Federal lands program and the permit has been replaced with a 

reference to 30 CFR Part 211, because that is where the requirements applicable to Federal lease bonds are contained. 

 OSM proposed to delete previous Section 744.13(e), which concerns public participation in the approval of 

abandonment and release of performance bonds because each regulatory program must contain counterpart 

requirements. 

 One commenter suggested that previous Section 744.13(e) should be retained, because OSM must comply with the 

requirements of 30 CFR Part 807, which will not be replicated in a State program, and because States are not likely to 

have appropriate hearing procedures for bond release. 

 OSM partially agrees with the commenter and has retained a modified version of previous Section 744.13(e). 

Approved State programs must contain standards and procedures for the approval of abandonment and release of 

performance bonds that are consistent with section 519 of the Act, which 30 CFR Part 807 implements. Thus, the 

standards and procedures of the State program concerning the approval of abandonment and release of performance 

bonds will apply to surface coal mining and reclamation operations on Federal lands, which is consistent with OSM's 

intent to apply the requirements of the applicable regulatory program to mining on Federal lands to the extent possible. 

However, where OSM is the regulatory authority, OSM cannot apply the State program requirements for public 

hearings. Such hearings by OSM must be in accordance with 5 U.S.C. 554 and the rules of the Department's Office of 

Hearings and Appeals at 43 CFR Part 4. Accordingly, OSM is adopting revised Section 740.19(c)(3) to provide that, 

where OSM is the regulatory authority, it shall conduct public hearings held on final abandonment and release of 

performance bonds in accordance with 5 U.S.C. 554 and the rules of the Department's Office of Hearings and Appeals 

at 30 CFR Part 4. Where the State is the regulatory authority, the State will use the administrative hearings procedures 

of its approved State program. 
PART 745 -- STATE-FEDERAL COOPERATIVE AGREEMENTS 

 

SECTION 745.1 - SCOPE. 

 As proposed, previous Section 745.1 has been retained with minor revisions for clarity. 

 Previous Section 745.2, "Objectives," and Section 745.4, "Responsibilities," have been removed, as proposed. 

 One commenter stated that Section 745.4 should not be deleted to the extent that it describes the respective duties 

of the Secretary, OSM, and the State regulatory authority under cooperative agreements on Federal lands. 

 OSM has rejected this comment because the responsibilities of the Secretary, OSM, and the State regulatory 

authority are adequately described under revised Section 740.4. 

 

SECTION 745.10 - INFORMATION COLLECTION. 

 Section 745.10 corresponds with the "Note" at the beginning of previous Part 745, which indentifies the OMB 

approval number for the information collection requirements of this Part. OSM has deleted this "Note" and is codifying 

OMB's approval of the information collection requirements of Part 745 in revised Section 745.10. 

 

SECTION 745.11 - APPLICATION AND AGREEMENT. 

 As proposed, revised Section 745.11(a) replaces the phrase "which are being conducted under the terms of a 

Federal lease" in previous Section 745.11(a) with the phrase "on Federal lands." This change makes clear that 

cooperative agreements apply to all Federal lands, not just lands containing leased Federal coal. 

 As proposed, previous Section 745.11(b) (1) through (6), which concerned specific information that must be 

submitted in a State's request for a cooperative agreement, will be removed and replaced with revised Section 

745.11(b)(1). These subsections have been deleted because the same information can be obtained from the State 

program submitted to the Office by the State for approval of its State program or from information available elsewhere 

in the Department. Moreover, revised Section 745.11(b)(1) provides a direct correlation between information needed 

to support an application for a cooperative agreement and the findings required under revised Section 745.11(f) 

through cross-referencing that section. With minor revisions for clarity, previous Section 745.11(b) (7) and (8) have 

been redesignated as revised Section 745.11(b) (2) and (3); no change in effect is intended. 

 As proposed, previous Section 745.11(c) has been revised to eliminate the requirement that the text of each 

cooperative agreement be published as a proposed rule in the exact terms submitted by the State. This will allow 

publication of either the text as submitted by the State or of a subsequent version resulting from discussions between 

OSM and the State. The requirement that a notice of the request and a summary of the terms of the agreement be 

published in newspapers in the State will be continued. 

 One commenter stated that proposed Section 745.11(c) should not eliminate the requirement that cooperative 

agreements be published in the Federal Register as submitted by the State, since this initiates the rulemaking process 

and with it the procedural protection afforded by the Administrative Procedure Act, such as the prohibition against ex 

parte communications. 

 OSM disagrees with the commenter that receipt of cooperative agreements from the State initiates the rulemaking 

process. OSM has found that when States initially submit proposed agreements, in addition to substantive changes that 

may be required, there are typically numerous editorial and format changes required before the document can be 

published in the Federal Register. Making these changes before publishing the document alleviates minor problems so 

that substantive changes can be dealt with more effectively upon publication of the proposed agreement as a proposed 

rule. Further, OSM does not consider discussions of these changes to violate the Administrative Procedure Act, since 

they occur prior to publication of the proposed rule in the Federal Register. 
 As proposed, the requirement of previous Section 745.11(c)(1), that the date, time and place of the public hearing 

be included in the rule, has been moved to the end of revised Section 745.11(d). As proposed, previous Section 

745.11(c)(2) has been redesignated as revised Section 745.11(c)(1), no change in effect is intended. 

 As proposed, previous Section 745.11(c)(3) has been redesignated as Section 745.11(c)(2) and revised to reduce 

the period for the public to submit written comments on the State's request for a cooperative agreement from 60 to 30 

days following its publication in the Federal Register as a proposed rule. This will greatly expedite the rulemaking 

process for adoption of cooperative agreements. One commenter stated that the time period for public participation 

should not be shortened. OSM believes, however, that the shortened comment period will still provide an adequate 

opportunity for public comment, a belief based upon the fact that OSM has received relatively few comments on past 

cooperative agreements under the longer comment period. 

 As proposed, previous Section 745.11(d) has been revised to eliminate the requirement that public hearings on the 

State's request for a cooperative agreement be held not less than 30 days after publication of the rules announcing such 

request. Instead, revised Section 745.11(d) requires that a public hearing be held within the comment period and that 

notice of such hearing be published in the Federal Register not less than 15 days prior to the date of the hearing. Such 

notice will, therefore, be required at least 15 days prior to the close of the comment period. One commenter opposed 

this shortened notice of hearing requirement. OSM believes that fifteen days is sufficient notice. Moreover, allowing 

the notice to be given after publication of the proposed cooperative agreement is justified by the difficulty of 

establishing a precise date and location for the hearing at the time the Federal Register notice is developed. 

 As proposed, previous Sections 745.11 (e) through (g) have been retained with minor editorial revisions. 

 

SECTION 745.12 - TERMS 

 As proposed, OSM has revised previous Section 745.12(a) to delete the phrase " and describing each applicable 

provision of the State's applicable statutes, regulations and policies" because in practice it has been found cumbersome 

and unproductive to describe these provisions in detail. An assessment of these provisions is required as part of OSM's 

State program approval process and need not be repeated in the cooperative agreement. However, any part of the 

State program not applicable on Federal lands will be identified in the cooperative agreement. 

 As proposed, previous Section 745.12(b) has been revised by inserting the phrase "but not limited to" after the 

word "including" in order to clarify that the description of the powers and authority reserved by the Secretary under 

revised Section 745.13 is not exhaustive. 

 As proposed, OSM has redesignated previous Section 745.12(c) as revised Section 745.12(d) with minor editorial 

revisions. 

 Revised Section 745.12(c) requires that the cooperative agreement specify how the requirements of Subchapter D 

will be applied to surface coal mining and reclamation operations on Federal lands to minimize overlap and duplication. 

Under revised Section 745.12(c), the cooperative agreement will specify which requirements in Subchapter D may be 

assumed by the State, which are reserved to the Department and which may be administered jointly. The Secretary 

intends to allow States to assume full responsibility for delegable requirements. Further, the Secretary believes that 

States can and should be relied upon to assist in carrying out non-delegable responsibilities. For example, States cannot 

assume responsibility for ensuring compliance with the National Environmental Policy Act, but can participate in 

preparing the supporting environmental documents and analyses. See 40 CFR 1506.2. The Secretary believes that 

certain other non-delegable requirements of this Subchapter may be complied with through joint participation by the 

State and the Department. 

 As proposed, previous Section 745.12 (d) and (e) have been redesignated as revised Section 745.12 (e) and (f), 

respectively; no changes in their effects are intended. 

 As proposed, previous Section 745.12(f), which provided that the cooperative agreement establish the amount of, 

and collection procedures for, permit application fees on Federal lands, has been removed, since the permit fee 
requirements of the State regulatory program will be applicable on Federal lands under revised Section 740.13(b)(1). 

 One commenter stated that previous Section 745.12(f) should remain in effect because provisions for fee collection 

on Federal lands should be contained in the cooperative agreement so that they can be enforced under that agreement 

by the Secretary, not through the State program. 

 OSM disagrees with the commenter. Establishment and collection of permit application fees is a regulatory matter 

properly delegable to a State under a SMCRA section 523(c) cooperative agreement. 

 As proposed, revised Section 745.12(g)(1) requires that under the cooperative agreement the State regulatory 

authority must make available to OSM information on any action taken regarding a permit application for surface coal 

mining and reclamation operations on Federal lands. This will enable OSM to ensure compliance with all legal and 

procedural requirements for which OSM is responsible. See revised Section 740.4(b). As proposed, revised Section 

745.12(g)(2) requires that each cooperative agreement obligate the State regulatory authority to provide OSM with, at 

a minimum, a written finding indicating that a permit application is in compliance with the terms of the State program 

and a technical analysis of the permit application that will assist OSM in meeting its responsibilities under applicable 

Federal laws and regulations other than SMCRA. OSM will prescribe the content and format for the information 

needed to satisfy the requirements of revised Section 745.12(g)(2) in order to establish a degree of uniformity among 

the various States with cooperative agreements. The addition of Section 745.12(g)(2) formalizes a provision which has 

been included in the terms of all cooperative agreements either already approved or currently being negotiated 

pursuant to the permanent program regulations. These agreements now require that the State regulatory authority, 

upon completion of its review of a permit application, provide OSM with documentation to assist OSM in meeting its 

non-delegable responsibilities under NEPA and other Federal laws and regulations other than SMCRA. 

 One commenter stated that the requirements of proposed Section 745.12(g)(2) should be limited to those lands 

containing leased Federal coal. 

 OSM agrees with the commenter and has revised Section 745.12(g)(2) accordingly. This section ensures that the 

Secretary fulfills all requirements under other Federal laws and regulations that may be triggered by the Secretary's 

approval of the mining plan. 

 Another commenter suggested that Section 745.12(g)(2) should read, "provide the Office, in the form specified by 

the Office in consultation with the State, with written findings * * *." 

 OSM has accepted this comment and incorporated the language suggested by the commenter into revised Section 

745.12(g)(2). 

 

SECTION 745.13 - AUTHORITY RESERVED TO THE SECRETARY. 

 The listing of requirements that are specifically reserved to the Secretary under previous Section 745.13 has been 

revised and expanded to include requirements for (1) evaluating the State's administration and enforcement of the State 

program and implementation of the cooperative agreement on Federal lands; (2) complying with the inspection, 

enforcement and civil penalty requirements of 30 CFR Parts 842 and 843, except as provided under Section 

740.4(c)(5) of this Subchapter, (3) determining valid existing rights for surface coal mining and reclamation operations 

on Federal lands within the boundaries of any areas specified under section 522(e)(1) or (2) of the Act, and (4) as 

discussed earlier, compatibility determinations under section 522(e)(2) of the Act. The specific references in proposed 

Section 745.13(m) and (o) to Endangered Species Act and National Historic Preservation Act responsibilities, 

respectively, have been deleted. In their place, revised Section 745.13(b) now refers to responsibilities under Federal 

laws and regulations other than SMCRA. 

 One commenter stated that proposed Section 745.13(c) should be modified to allow the State regulatory authority 

to approve post-mining land uses where the surface is privately- or State-owned and the coal is Federally-owned.

Another commenter stated that proposed Section 745.13(k) should also be modified in this manner with respect to the 

development of land use plans. 
 OSM agrees with these commenters and is modifying the language proposed for Section 745.13(c) and (k) to allow 

delegation of those functions where the surface estate is not Federally-owned. 

 One commenter stated that proposed Section 745.13 should be amended to include the requirements of section 

176(c) of the Clean Air Act. Section 176(c) provides that: 

 No department, agency, or instrumentality of the Federal Government shall (1) engage in, (2) support in any way or 

provide financial assistance for, (3) license or permit or (4) approve, any activity which does not conform to a plan 

after it has been approved or promulgated under section 110. * * * The assurance of conformity to such a plan shall be 

an affirmative responsibility of the head of such department, agency, or instrumentality. 

 OSM agrees with the commenter that compliance with section 176(c) of the Clean Air Act is a responsibility of the 

Secretary; however, specific reference to this requirement is unnecessary because it is encompassed by revised Section 

745.13(b). 

 

SECTIONS 745.14, 745.15 AND 745.16. 

 As proposed, previous Sections 745.14, 745.15 and 745.16 have been retained. 

 One commenter stated that OSM should authorize under Section 745.14 a fast-track procedure which avoids the 

cumbersome rulemaking requirements of Section 745.11 for amendments to a cooperative agreement that merely bring 

the agreement in line with the revised Federal lands regulations. 

 OSM has declined to adopt the procedures suggested by the commenters. OSM believes that any changes in an 

approved cooperative agreement should be made through rulemaking to provide the public with an opportunity to 

comment on those changes. Further, OSM believes it has already substantially streamlined the requirements for 

amending cooperative agreement through the changes being adopted under this rulemaking. 

 

PART 746 -- REVIEW AND APPROVAL OF MINING PLANS 

 As proposed, Part 746, which has no counterpart in previous regulations, sets forth the requirements for review and 

approval of mining plans. 

 

SECTION 746.1 - SCOPE. 

 As proposed, Section 746.1 describes the coverage of these regulations and the requirements for review and 

approval, disapproval or conditional approval of mining plans on lands containing leased Federal coal. 

 

SECTION 746.10 - INFORMATION COLLECTION. 

 Section 746.10 corresponds to the "Note" at the beginning of previous 30 CFR Part 741 with respect to mining 

plans and identifies the OMB approval number for the relevant information collection requirements of that part. OSM 

has deleted the "Note" and is codifying OMB's revised approval of the information collection requirements of previous 

Part 741 as it relates to mining plans in Section 746.10. 

 

SECTION 746.11 - GENERAL REQUIREMENTS. 

 As proposed, Section 746.11(a) provides that surface coal mining and reclamation operations on lands containing 

leased Federal coal will require approval of a mining plan by the Secretary. While the processing of a permit may be 

undertaken as a separate action by the regulatory authority, the Secretary must decide whether surface coal mining can 

occur on such lands before mining may commence. 

 One commenter stated that OSM should neither (1) restrict the Secretary's authority to approve mining plans under 

section 523 to lands containing leased Federal coal, nor (2) allow States with approved cooperative agreements to 

either issue permits for mining on Federal lands or take that action prior to Secretarial approval of the mining plan. 
 OSM has rejected this comment for the reasons discussed above under "Permit Application and Mining Plan 

Review and Approval." 

 As proposed, Section 746.11(b) requires that mining on lands containing leased Federal coal be conducted under an 

approved permit that is issued in accordance with Subchapter D and that is consistent with an approved mining plan. 

Where there is a cooperative agreement, the State regulatory authority will fully process a permit application in 

accordance with its program and, if it approves the application, issue the permit. Issuance of the permit in this 

circumstance will be based on the requirements of the State program and any requirements of this Subchapter that 

have been delegated to the State. Thus, permit issuance will be separate from approval of the mining plan by the 

Secretary. It is possible, though unlikely, that although the State regulatory authority has concluded that mining could 

be conducted within the requirements of its regulatory program, the Secretary could determine that mining cannot 

occur because of applicable Federal laws and regulations other than SMCRA and, therefore, disapprove the mining 

Plan. However, because of the close coordination and continuous communication that are necessary to properly 

implement the terms of a cooperative agreement, OSM expects few instances of disagreement on decisions regarding 

mining proposals. 

 

SECTION 746.13 - DECISION DOCUMENT AND RECOMMENDATION ON MINING PLAN. 

 OSM has adopted, as proposed, Section 746.13, which provides for the preparation of a decision document by 

OSM to be submitted to the Secretary recommending approval, disapproval, or conditional approval of the mining 

plan. Section 746.13 sets forth the elements on which the decision document will be based, including, but not limited 

to, the permit application package, which includes the resource recovery and protection plan required by 30 CFR Part 

211; information prepared in compliance with the National Environmental Policy Act; documentation assuring 

compliance with Federal laws, regulations and executive orders other than SMCRA; comments and recommendations 

or concurrences of other Federal agencies; comments of the public; the findings and recommendations of the BLM 

regarding compliance with the resource recovery and protection plan and other requirements of the Mineral Leasing 

Act and the lease; the findings and recommendations of the regulatory authority with respect to the permit application, 

the Act, and the State program; and the findings and recommendations of the Office with respect to the additional 

requirements of this subchapter. 

 

SECTION 746.14 - APPROVAL, DISAPPROVAL OR CONDITIONAL APPROVAL OF MINING PLAN. 

 As proposed, Section 746.14 requires the Secretary to approve, disapprove, or conditionally approve the mining 

plan. 

 One commenter stated that the heading for proposed Section 746.14 is misleading because Secretarial action can be 

something other than approval. 

 OSM agrees with the commenter and is modifying the heading to Section 746.14 accordingly. 

 

SECTION 746.17 - TERM OF APPROVAL. 

 As proposed, Section 746.17(a) will specify that each mining plan approval shall cover the operations for which a 

complete permit application package was submitted, unless otherwise indicated in the approval. 

 One commenter stated that OSM should modify proposed Sections 746.17 and 746.18 to clarify that permit 

renewal decisions are the sole responsibility of the regulatory authority unless the renewal proposes some change 

which constitutes a mining plan modification. 

 OSM agrees that permit renewal decisions are the responsibility of the regulatory authority and that such revisions 

will not require Secretarial approval unless they modify the mining plan. 
 As proposed Section 746.17(b) specifies that an approved mining plan remains in effect until modified, cancelled or 

withdrawn and is binding on any person mining under its provisions. 

 

SECTION 746.18 - MINING PLAN MODIFICATION. 

 As proposed, Section 746.18(a) requires that modifications to mining plans be approved by the Secretary and 

Section 746.18(b) requires that such modifications be processed in accordance with Part 746. 

 Section 746.18(c) provides that mining operations under a permit revision for mining on land containing leased 

Federal coal may not commence until either OSM determines that the revision is not a mining plan modification or, if 

a mining plan modification is involved, the Secretary approves the modification. Section 746.18(c) is intended to make 

clear that it is only where a permit revision affects the basis for mining plan approval that Secretarial approval of the 

revision will be required. Approval of permit revisions that will not constitute a mining plan modification will be the 

responsibility of the regulatory authority. 

 OSM has adopted, as proposed, Section 746.18(d) which lists the criteria for determining when a permit revision 

constitutes a mining plan modification. 

 One commenter stated that, assuming that "term" means "stipulation" in proposed Section 746.18(d)(1), OSM 

should clarify the meaning of this criterion, since past practice has been to include very broad language in stipulations. 

 OSM has accepted this comment in part. Revised Section 746.18(d)(1) provides that any change in a permit "term, 

condition, or stipulation" included pursuant to Federal law or regulation other than SMCRA constitutes a mining plan 

modification. OSM's intent is to ensure Secretarial review of permit changes relating to laws other the SMCRA, while 

preserving State independence in approving permit revisions as they relate to SMCRA. OSM deems it inappropriate 

and unnecessary, however, to include specific revision criteria in these regulations. While some terms, conditions and 

stipulations are standard and are included in many approved mining plans, most are developed on a case-by-case basis, 

and reflect special requirements applicable only to the mining operation in question. 

 

III. PROCEDURAL MATTERS 

 

National Environmental Policy Act 

 This rule is part of the Secretary's implementation of the Federal lands program and, therefore, pursuant to section 

702(d) of the Act, 30 U.S.C. 1292(d), OSM is not required to prepare a detailed statement pursuant to section 

102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). 

 

Federal Paperwork Reduction Act 

 The information collection requirements in previous 30 CFR Parts 741, 742 and 745 were approved by the Office 

of Management and Budget (OMB) under 44 U.S.C. 3507 and assigned clearance numbers 1029-26, 1029-27 and 

1029-28. This approval was identified in "notes" at the introduction to 30 CFR Parts 741, 742 and 745. OSM has 

deleted those "notes" and is codifying the OMB approvals under sections 740.10, 745.10 and 746.10. OSM has 

received OMB approval of the information collection requirements being for the following sections: 30 CFR 

740.13(b), 740.13(c)(8), 740.13(e), 740.15(a), 740.15(c)(1), 740.15(d)(2), 740.15(d)(3) and 746.12. The information 

required by 30 CFR Parts 740, 745 and 746 will be used by the Office in the implementation of the Federal lands 

program required under section 523(a) of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 

1273(a). The information required by 30 CFR Parts 740, 745 and 746 is mandatory. 

 

Executive Order 12291 and Regulatory Flexibility Act. 

 The Department of the Interior has determined that this document is not a major rule under Executive Order 12291 

and does not require a small entity flexibility analysis under the Regulatory Flexibility Act. 

 It is not anticipated that the proposed revisions to Subchapter D would have any significant adverse impacts on 

State or Federal agencies, individual industry or consumers. Unnecessarily burdensome and counterproductive 
provisions would be eliminated, modified or rewritten to provide additional flexibility, and to distinguish mandatory 

from discretionary requirements. 

 The proposed revisions to Subchapter D would not result in significant adverse effects on employment, investment, 

productivity, innovation or on the ability of U.S.-based enterprises to compete in domestic or foreign markets. The 

main impact of the changes would be to provide for better coordination and cooperation among the State regulatory 

authority, OSM and the Geological Survey in regulating coal mining activities under a State-Federal cooperative 

agreement. The OSM regulations concerning State-Federal cooperative agreements would continue to require that 

minimum standards be met, which assures that a State may not secure a competitive advantage for its mining operators 

over those of another State by adopting substandard regulations. 

 This would be a beneficial impact on small coal mine operators, in that small operators whose operations extend to 

both State and Federal lands would have only one regulatory authority to deal with instead of two. 

 

LIST OF SUBJECTS 

 

30 CFR Part 700 

 Administration practice and procedure, Coal mining, Surface mining, Underground mining, Reporting requirements. 

 

30 CFR Part 701 

 Coal mining, Law enforcement, Surface mining, Underground mining. 

 

30 CFR Part 740 

 Coal mining, Public lands, Mineral resources, Reporting requirements, Surface mining. 

 

30 CFR Part 745 

 Coal mining, Intergovernmental relations, Public lands, Mineral resources, Reporting requirements, Surface mining, 

Underground mining. 

 

30 CFR Part 746 

 Coal mining, Mining plan, Public lands, Mineral resources, Reporting requirements, Surface mining, Underground 

mining. 

 Accordingly, 30 CFR Parts 700, 701, 740, and 745 are amended, Parts 741, 742, 743 and 744 removed, and a 

revised Part 746 added as follows: 

Dated: December 27, 1982. 

Daniel N. Miller, Jr., Assistant Secretary, Energy and Minerals. 

PART 700 -- GENERAL 

 1. Section 700.1(d) is revised to read as follows: 

SECTION 700.1 - SCOPE. 

* * * * * 

(d) Subchapter D of this chapter identifies the procedures that apply to surface coal mining and reclamation operations 

conducted on Federal lands rather than State or private lands and incorporates by reference the requirements of the 

applicable regulatory program and the inspection and enforcement requirements of Subchapter L of this chapter. 

 

* * * * * 

 Authority: 30 U.S.C. 1201 et seq. 
 2. The definition of "regulatory program" in Section 700.5 is revised to read as follows: 

SECTION 700.5 - DEFINITIONS. 

 

* * * * * 

REGULATORY PROGRAM means any approved State or Federal program or, in a State with no approved State or 

Federal program and coal exploration and surface coal mining and reclamation operations are on Federal lands, the 

requirements of subchapters A, F, G, J, K, L, M, and P of this chapter. 

 Authority: 30 U.S.C. 1201 et seq. 

 3. Section 700.11(g) is revised to read as follows: 

SECTION 700.11 - APPLICABILITY. 

 

* * * * * 

(g) Coal exploration on lands subject to the requirements of 30 CFR Part 211 of this title. 

 

Authority: 30 U.S.C. 1201 et seq. 

PART 701 -- PERMANENT REGULATORY PROGRAM 

 4. The definition of "permit" in Section 701.5 is revised to read as follows: 

SECTION 701.5 - DEFINITIONS. 

 

* * * * * 

PERMIT means a permit to conduct surface coal mining and reclamation operations issued by the State regulatory 

authority pursuant to a State program or by the Secretary pursuant to a Federal program. For purposes of the Federal 

lands program, permit means a permit issued by the State regulatory authority under a cooperative agreement or by 

OSM where there is no cooperative agreement. 

 

* * * * * 

 Authority: 30 U.S.C. 1201 et seq. 

 5. Section 701.11(b) is revised to read as follows: 

SECTION 701.11 - APPLICABILITY. 

 

* * * * * 

(b) Any person who conducts surface coal mining and reclamation operations on Federal lands on or after 8 months 

from the date of approval of a State program or implementation of a Federal program for the State in which the 

Federal lands are located shall have a permit issued pursuant to Part 740 of this chapter. However, under conditions 

specified in Section 740.13(a)(3) of this chapter, a person may continue such operations under a mining plan 
previously approved pursuant to Part 211 of this title or a permit issued by the State under the interim State program 

after 8 months after the date of approval of a State program or implementation of a Federal program. 

 

* * * * * 

 

Authority: 30 U.S.C. 1201 et seq. 

 6. Part 740 is revised to read as follows: 

PART 740 -- GENERAL REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION 

OPERATIONS ON FEDERAL LANDS 

Section 

740.1 Scope and purpose. 

740.4 Responsibilities. 

740.5 Definitions. 

740.10 Information collection. 

740.11 Applicability. 

740.13 Permits. 

740.15 Bonds on Federal lands. 

740.17 Inspection, enforcement and civil penalties. 

740.19 Performance standards. 

 Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq. 

SECTION 740.1 - SCOPE AND PURPOSE. 

 This subchapter provides for the regulation of surface coal mining and reclamation operations on Federal lands. 

SECTION 740.4 - RESPONSIBILITIES. 

(a) The Secretary is responsible for: 

(1) Approval, disapproval or conditional approval of mining plans with respect to lands containing leased 

Federal coal and of modifications thereto, in accordance with the Mineral Leasing Act of 1920, as amended, 30 U.S.C. 

181 et seq.; 

(2) Execution, modification or termination of State-Federal cooperative agreements in accordance with Part 

745 of this chapter; and 

(3) Designation of areas of Federal lands as unsuitable for all or certain types of surface coal mining and 

reclamation operations, or termination of such designations, in accordance with Part 769 of this chapter. 

(4) Determination of valid existing rights for surface coal mining and reclamation operations on Federal lands 

within the boundaries of any areas specified under section 522 (e)(1) or (2) of the Act. 

(5) Determination that there are no significant recreational, timber, economic, or other values which may be 

incompatible with surface coal mining and reclamation operations on any Federal lands within the boundaries of any 

national forest under section 522(e)(2) of the Act. 

(b) OSM is responsible for: 

(1) Providing a decision document recommending to the Secretary approval, disapproval or conditional 

approval of mining plans and of modifications thereto; 

(2) Approval of experimental practices on Federal lands; 

(3) Inspection, enforcement and civil penalties with respect to surface coal mining and reclamation operations 

on Federal lands except as provided in paragraph (c)(5) of this section; 
(4) Processing citizen requests for Federal inspections on Federal lands in accordance with Parts 842, 843 and 

845 of this chapter; and 

(5) Overseeing the State regulatory authority's administration and enforcement of the State program on 

Federal lands pursuant to the terms of any cooperative agreement. 

(c) The following responsibilities of OSM may be delegated to a State regulatory authority under a cooperative 

agreement: 

(1) Review and approval, conditional approval of disapproval or permit applications for surface coal mining 

and reclamation operations on Federal lands, revisions or renewals thereof, and applications for the transfer, sale or 

assignment of such permits; 

(2) Consultation with and obtaining the consent, as necessary, of the Federal land management agency with 

respect to post-mining land use and to any special requirements necessary to protect non-coal resources of the areas 

affected by surface coal mining and reclamation operations; 

(3) Consultation with and obtaining the consent, as necessary, of the Bureau of Land Management with 

respect to requirements relating to the development, production and recovery of mineral resources on lands affected by 

surface coal mining and reclamation operations involving leased Federal coal pursuant to 43 CFR Part 3400; 

(4) Approval and release of performance bonds, liability insurance and, as applicable, Federal lessee 

protection bonds required for surface coal mining and reclamation operations on Federal lands. Approval and release 

of Federal lessee protection bonds requires the concurrence of the Federal land management agency; 

(5) Responsibilities of the regulatory authority with respect to inspection, enforcement and civil 

penalty activities for (i) exploration operations not subject to Part 211 of this title, and (ii) surface 

coal mining and reclamation operations on Federal lands; 

(6) Review and approval of exploration operations not subject to the requirements of Part 211 of this title; 

and 

(7) Preparation of documentation to comply with the requirements of the National Environmental Policy Act 

(42 U.S.C. 4321 et seq .), except, OSM continues to be responsible for: 

(i) Determining the scope, content and format and ensuring the objectivity of NEPA compliance 

documents; 

(ii) Making the determination of whether or not the preparation of an environmental impact 

statement is required. 

(iii) Notifying and soliciting views of other State and Federal agencies, as appropriate, on the 

environmental effects of the proposed action; 

(iv) Publishing and distributing draft and final NEPA compliance documents; 

(v) Making policy responses to comments on draft NEPA compliance documents; 

(vi) Independently evaluating NEPA compliance documents; and 

(vii) Adopting NEPA compliance documents and determining Federal actions to be taken on 

alternatives presented in such documents. 

(d) The Bureau of Land Management is responsible for: 

(1) Receiving and approving exploration plans pursuant to Part 211 of this title; 

(2) Inspection, enforcement and civil penalties with respect to the terms and conditions of coal exploration 

licenses issued pursuant to 43 CFR Part 3400; 

(3) Inspection, enforcement and civil penalties with respect to the terms and conditions of exploration 

operations subject to Part 211 of this title; 

(4) Reviewing the resource recovery and protection plan and modifications thereto, as required by Part 211 of 

this title and recommending to the Secretary approval, disapproval or conditional approval of the resource recovery 

and protection plan; 

(5) Inspection, enforcement and civil penalties with respect to the recovery and protection of the coal 

resource as required by Part 211 of this title; 

(6) Protecting mineral resources not included in the coal lease; 

(7) Issuance of exploration licenses for Federal coal subject to the requirements of 43 CFR Part 3400; 

(8) Issuance of leases and licenses to mine Federal coal subject to the requirements of 43 CFR Part 3400; and 

(9) Issuance, readjustment, modification, termination, cancellation, and approval of transfers of Federal coal 

leases pursuant to the Mineral Leasing Act and the Mineral Leasing Act for Acquired Lands of 1947, as amended, 30 
U.S.C. 351 et seq. 

(e) The Federal land management agency is responsible for: 

(1) Determining post-mining land uses; 

(2) Protection of non-mineral resources; 

(3) Requiring such conditions as may be appropriate to regulate surface coal mining and reclamation 

operations under other provisions of law applicable to such lands under its jurisdiction; and 

(4) Where land containing leased Federal coal is under the surface jurisdiction of a Federal agency other than 

the Department, concur in the terms of the mining plan approval. 

SECTION 740.5 - DEFINITIONS. 

(a) As used in this subchapter, the term: 

AUTHORIZED OFFICER means any person authorized to take official action on behalf of a Federal agency that has 

administrative jurisdiction over Federal lands. 

COAL LEASE means a Federal coal lease or license issued by the Bureau of Land Management pursuant to the 

Mineral Leasing Act and the Federal Acquired Lands Leasing Act of 1947 (30 US.C. 351 et seq. ). 

COOPERATIVE AGREEMENT means a cooperative agreement entered into in accordance with section 523(c) of 

the Act and Part 745 of this chapter. 

FEDERAL LAND MANAGEMENT AGENCY means a Federal agency having administrative jurisdiction over the 

surface of Federal lands that are subject to these regulations. 

FEDERAL LEASE BOND means the bond or equivalent security required by 43 CFR Part 3400 to assure 

compliance with the terms and conditions of a Federal coal lease. 

FEDERAL LESSEE PROTECTION BOND means a bond payable to the United States or the State, whichever is 

applicable, for use and benefit of a permittee or lessee of the surface lands to secure payment of any damages to crops 

or tangible improvements on Federal lands, pursuant to section 715 of the Act. 

LEASE TERMS, CONDITIONS AND STIPULATIONS means all of the standard provisions of a Federal coal 

lease, including provisions relating to lease duration, fees, rentals, royalties, lease bond, production and recordkeeping 

requirements, and lessee rights of assignment, extension, renewal, termination and expiration, and site-specific 

requirements included in Federal coal leases in addition to other terms and conditions which relate to protection of the 

environment and of human, natural and mineral resources. 

LEASED FEDERAL COAL means coal leased by the United States pursuant to 43 CFR Part 3400, except mineral 

interests in coal on Indian lands. 

MINERAL LEASING ACT or MLA means the Mineral Leasing Act of 1920, as amended, 30 U.S.C. 181, et seq. 

MINING PLAN means the plan for mining leased Federal coal required by the Mineral Leasing Act. 

PERMIT APPLICATION PACKAGE means a proposal to conduct surface coal mining and reclamation operations 

on Federal lands, including an application for a permit, permit revision or permit renewal, all the information required 

by the Act, this subchapter, the applicable State program, any applicable cooperative agreement and all other 

applicable laws and regulations including, with respect to leased Federal coal, the Mineral Leasing Act and its 

implementing regulations. 
REGULATORY AUTHORITY means the State regulatory authority pursuant to a cooperative agreement approved 

under Part 745 of this chapter or, in the absence of a cooperative agreement, OSM. 

TVA-OWNED LANDS means land owned by the United States and entrusted to or managed by the Tennessee 

Valley Authority. 

(b) The following terms shall have meanings as set forth in Part 211 of this title: Exploration; exploration plan; 

maximum economic recovery; method of operation; mine; and resource recovery and protection plan. 

SECTION 740.10 - INFORMATION COLLECTION. 

 The information collection requirements contained in this part have been approved by OSM of Management and 

Budget under 44 U.S.C. 3507 and assigned clearance numbers 1029-0026 and 1029-0027. The information is being 

collected to determine compliance with sections 506, 507, 509, 510, 515 and 523 of the Act (30 U.S.C. 1256, 1257, 

1259, 1260, 1265 and 1273) and this part. The obligation to respond to the information collection requirements of this 

part is mandatory. 

SECTION 740.11 - APPLICABILITY. 

(a) Upon approval or promulgation of a regulatory program for a State, that program and this subchapter shall apply 

to: 

(1) Coal exploration operations on lands not subject to Part 211 of this title, 

(2) Surface coal mining and reclamation operations on lands containing leased Federal coal, and 

(3) Surface coal mining and reclamation operations on lands where either the coal to be mined or the surface 

are owned by the United States, except as specified in this subchapter. 

(b) Where OSM is the regulatory authority, references in the State program to the State or an agency or official of the 

State (with respect to functions of the State acting as regulatory authority) shall be construed as referring to OSM. 

(c) Where the Secretary and a State have entered into a cooperative agreement, the cooperative agreement shall 

delineate the responsibilities of the Secretary and the State with respect to the administration of the regulatory program 

and this subchapter. 

(d) Nothing in this subchapter shall affect in any way the authority of the Secretary or any Federal land 

management agency to include in any lease, license, permit, contract, or other instrument such conditions as may be 

appropriate to regulate surface coal mining and reclamation operations under provisions of law other than the Act on 

land under their jurisdiction. 

(e) This subchapter shall not apply to surface coal mining and reclamation operations within a State prior to approval 

or promulgation of a regulatory program for the State. 

SECTION 740.13 - PERMITS. 

(a) General requirements. 

(1) No person shall conduct surface coal mining and reclamation operations on lands subject to this part 

unless that person has first obtained a permit issued pursuant to the regulatory program and this part. 

(2) Every person conducting surface coal mining and reclamation operations on lands subject to this part shall 

comply with the terms and conditions of the permit and the lease or license, the Act, this subchapter, the regulatory 

program and all other applicable State and Federal laws and regulations. 
(3) Surface coal mining and reclamation operations authorized under the initial regulatory program or Part 

211 of this title, as applicable, may be conducted beyond the eight-month period prescribed in the applicable regulatory 

program if all of the following conditions are present: 

(i) A timely and administratively complete application for a permit to conduct those operations under 

this Part has been made to the regulatory authority in accordance with the provisions of this Part and the applicable 

regulatory program; 

(ii) The regulatory authority has not yet rendered a final decision with respect to the permit 

application; and 

(iii) Those operations are conducted in compliance with all terms and conditions of the initial 

regulatory program approval or permit, the requirements of the Act. 30 CFR Chapter VII, Subchapter B or Part 211 

of this title, as applicable, applicable State laws and regulations, and the requirements of the applicable lease or 

license. 

(b) Permit Application Package. 

(1) Each application for a permit, or permit revision or renewal thereof to conduct surface coal mining and 

reclamation operations on lands subject to this part shall be accompanied by a fee made payable to the regulatory 

authority. The amount of the fee shall be determined in accordance with the permit fee criteria of the applicable 

regulatory program. 

(2) Unless specified otherwise by the regulatory authority, seven copies of the complete permit application 

package shall be filed with the regulatory authority. 

(3) Each permit application package shall include: 

(i) The information required for a permit application or for an application for revision or renewal of a 

permit under the applicable regulatory program; 

(ii) The resource recovery and protection plan required by Part 211 of this title for operations on 

lands containing leased Federal coal; and 

(iii) Where OSM is the regulatory authority or where the proposed operations are on lands 

containing leased Federal coal, the following supplemental information to ensure compliance with Federal laws and 

regulations other than the Act: 

(A) A description of the affected area of the proposed surface coal mining and reclamation 

operation with respect to: (1 ) Increases in employment, population and revenues to public and private entities, and (2 

) the ability of public and private entities to provide goods and services necessary to support surface coal mining and 

reclamation operations. 

(B) An evaluation of impacts to the scenic and aesthetic resources, including noise on the 

surrounding area, due to the proposed surface coal mining and reclamation operation. 

(C) A statement, including maps and ownership data as appropriate, of any cultural or 

historical sits listed on the National Register of Historic Places within the affected area of the proposed surface coal 

mining and reclamation operation. 

(D) A statement of the classes of properties of potential significance within the disturbed 

area, and a plan for the identification and treatment, in accordance with 36 CFR Part 800, of properties significant and 

listed or eligible for listing on the National Register of Historic Places within the disturbed area of the proposed surface 

coal mining and reclamation operation. 

(E) A description of the probable changes in air quality resulting from the mining operation 

and any necessary measures to comply with prevention of significant deterioration limitations, State Implementation 

Plans, or other Federal or State laws for air quality protection. 

(F) A description of the location, acreage and condition of important habitats of selected 

indicator species located within the affected area of the proposed surface coal mining and reclamation operation. 

(G) A description of active and inactive nests and prey areas of any Bald or Golden eagles 

located within the affected area of the proposed surface coal mining and reclamation operations. 

(H) A description of all threatened and endangered species and their critical habitats located 

within the affected area of the proposed surface coal mining and reclamation operations. 

(4) Where the surface of the Federal lands is subject to a lease or permit issued by the Federal government to 

a person other than the applicant, the permit application package shall contain information sufficient to demonstrate 

compliance with the requirements of Section 740.15(c)(1). This requirement shall not apply to TVA-owned lands. 
(c) Permit Review and Processing. Applications for permits, permit revisions or renewals thereof to conduct surface 

coal mining and reclamation operations on lands subject to this part shall be reviewed and processed in accordance 

with the requirements of the applicable regulatory program, subject to the following additional requirements: 

(1) Permit terms and conditions. Permits shall include, as applicable, terms and conditions required by the 

lease issued pursuant to the Mineral Leasing Act and by other applicable Federal laws and regulations. 

(2) Criteria for permit approval or denial. The regulatory authority shall not approve an application for a 

permit, or permit revision or renewal thereof for surface coal mining and reclamation operations on lands subject to 

this part unless the application is in accordance with the requirements of the applicable regulatory program and this 

Part or a cooperative agreement, as applicable. 

(3) Public participation in permit review process. Where public hearings were held and determinations made 

under section 2(a)(3) (A), (B) and (C) of the Mineral Leasing Act (30 U.S.C. 201(a)(3) (A), (B) and (C)), such 

hearings may be made a part of the record of each public hearing on a permit application held pursuant to the 

requirements of the applicable regulatory program and this part. Matters covered at such hearings and determinations 

made at such hearings need not be readdressed. 

(4) Permit review processing for operations on lands administered by a Federal land management agency. 

Upon receipt of a permit application package or a proposed revision or renewal of an approved permit that involves 

surface coal mining and reclamation operations on lands administered by an agency of the Federal Government, the 

regulatory authority shall transmit a copy of the complete permit application package, or proposed revision or renewal 

thereof, to the Federal land management agency, with a request for review and comment. 

(5) Consultation with other Federal agencies. Prior to approving or disapproving a permit, permit revision or 

renewal thereof, the regulatory authority shall consider the comments of the Federal land management agency and 

include these comments in the record of permit decisions. 

(6) Permit processing schedule. The regulatory authority shall process the permit application package within 

the time schedule established by the applicable regulatory program, except that the schedule may be extended if 

necessary to ensure compliance with Federal laws and regulations other than the Act. 

(7) Determination of operator compliance with the Act. Where OSM is the regulatory authority, it shall afford 

the applicant or operator an opportunity for an adjudicatory hearing as provided in 43 CFR Part 4 prior to a final 

determination on whether the applicant, or the operator specified in the application, controls or has controlled mining 

operations with a demonstrated pattern of willful violations of the Act of such nature and duration and with such 

resulting irreparable damage to the environment as to indicate an intent not to comply with the provisions of the Act. 

(8) Administrative review of decisions on permit applications. Where OSM is the regulatory authority, the 

final decision on a permit application is subject to an appeal to the Department's Office of Hearings and Appeals as 

provided in Part 787 of this Chapter. Where the State is the regulatory authority under a cooperative agreement, the 

final decision on a permit application is subject to administrative review as provided under the approved State 

program. 

(9) Bonds and insurance required for issuance of permits. After the approval of an application for a new or 

revised permit or for renewal of an existing permit, but prior to issuance of such permit, the applicant/permittee shall 

file with the regulatory authority: 

(i) a performance bond which meets the requirements of the applicable regulatory program; 

(ii) proof of liability insurance in accordance with the applicable regulatory program; and 

(iii) where required, evidence of the execution of a Federal lessee protection bond. Bonds required 

to be filed with OSM shall be in a form required by OSM and made payable to the United States. 

(d) Review of permit revisions. 

(1) Where the State is the regulatory authority for surface coal mining and reclamation operations on lands 

subject to this subchapter, it shall inform OSM of each request for a permit revision with respect to operations on lands 

containing leased Federal coal. 

(2) OSM shall review each permit revision in consultation with the Bureau of Land Management and the 

appropriate Federal land management agency to determine whether the permit revision constitutes a mining plan 

modification requiring the Secretary's approval under section 746.18 of this chapter. 

(3) The regulatory authority shall consult with the Federal land management agency to determine whether any 

permit revision will adversely affect Federal resources other than coal and whether the revision is consistent with that 

agency's land use plans for other Federal laws, regulations and executive orders for which it is responsible. 
(e) Transfer, assignment or sale of rights. 

(1) The regulatory authority, before approving or disapproving an application for transfer, assignment or sale 

of rights granted under a permit issued pursuant to this subchapter, shall consult with the appropriate Federal land 

management agency and the Bureau of Land Management, as applicable. 

(2) Approval of a transfer, assignment or sale of rights granted under a permit issued pursuant to this 

subchapter shall not be construed to constitute a transfer or assignment of leasehold interests. Leasehold interests may 

be transferred or assigned only in accordance with 43 CFR Part 3453. 

(f) Suspension or revocation of permits. 

(1) A permit to conduct surface coal mining and reclamation operations on Federal lands may be suspended 

or revoked by the regulatory authority in accordance with Part 843 of this chapter and the applicable regulatory 

program. 

(2) If a permit to conduct surface coal mining and reclamation operations on lands containing leased Federal 

coal is suspended or revoked, the regulatory authority shall notify the Bureau of Land Management so that the Bureau 

of Land Management can determine whether action should be taken to cancel the Federal lease. This section does not 

release the Federal lessee from the diligent development or continued operation requirements of Part 211 of this title. 

SECTION 740.15 - BONDS ON FEDERAL LANDS. 

(a) Federal lease bonds. 

(1) Each holder of a Federal coal lease that is covered by a Federal lease bond required under 43 CFR Part 

3474 may apply to the authorized officer for release of liability for that portion of the Federal lease bond that covers 

reclamation requirements. 

(2) The authorized officer may release the liability for that portion of the Federal lease bond that covers 

reclamation requirements if: 

(i) The lessee has secured a suitable performance bond covering the permit area under this part; 

(ii) There are no pending actions or unresolved claims against existing bonds; and 

(iii) The authorized officer has received concurrence from OSM and the Bureau of Land 

Management. 

(b) Performance bonds. Where the State is the regulatory authority under a cooperative agreement, the performance 

bonds required for operations on Federal lands shall be made payable to the United States and the State. Where OSM 

is the regulatory authority, such bonds shall be payable only to the United States. 

(c) Federal lessee protection bonds. 

(1) Where leased Federal coal is to be mined and the surface of the land is subject to a lease or permit issued 

by the United States for purposes other than surface coal mining, the applicant for a mining permit, if unable to obtain 

the written consent of the permittee or lessee of the surface to enter and commence surface coal mining operations, 

shall submit to the regulatory authority with his application evidence of execution of a bond or undertaking which 

meets the requirements of this section. The Federal lessee protection bond is in addition to the performance bond 

required by a regulatory program. This section does not apply to permits or licenses for the use of the surface that do 

not convey to the permittee or licensee the right of transfer, sale or consent to other uses. 

(2) The bond shall be payable to the United States and, as applicable, the State for the use and benefit of the 

permittee or lessee of the surface lands involved. 

(3) The bond shall secure payment to the surface estate for any damage which the surface coal mining and 

reclamation operation causes to the crops or tangible improvements of the permittee or lessee of the surface lands. 

(4) The amount of the bond shall be determined either by the applicant and the Federal lessee or permittee or 

as determined in an action brought against the person conducting surface coal mining and reclamation operations or 

upon the bond in a court of competent jurisdiction. 
(d) Release of Bonds. 

(1) A Federal lease bond may be released by the State upon satisfactory compliance with all applicable 

requirements of Part 211 of this chapter and 43 CFR Part 3400 and after the release is concurred in by the Bureau of 

Land Management. 

(2) A Federal lessee protection bond shall be released upon the written consent of the permittee or lessee. 

(3) Where surface coal mining and reclamation operations are subject to an approved mining plan, a

performance bond shall be released by the State after the release is concurred in by OSM. 

SECTION 740.17 - INSPECTION, ENFORCEMENT AND CIVIL PENALTIES. 

(a) General requirements. 

(1) Where OSM is the regulatory authority, Parts 840, 842, 843 and 845 of this chapter shall govern its 

inspection, enforcement and civil penalty activities with respect to surface coal mining and reclamation operations on 

Federal lands. 

(2) Where the State is the regulatory authority under a cooperative agreement, the State program shall govern 

inspection, enforcement and civil penalty activities by the regulatory authority with respect to surface coal mining and 

reclamation operations on Federal lands, while the requirements of Part 842, 843 and 845 of this chapter shall govern 

OSM inspection, enforcement and civil penalty activities conducted in oversight of the State program. 

(3) The requirements of this section shall not apply to coal exploration on Federal lands subject to the 

requirements of Part 211 of this chapter. 

(b) Right of entry. 

(1) Persons engaging in coal exploration or surface coal mining and reclamation operations on Federal lands 

shall provide access for any authorized officer of OSM, the regulatory authority, and, as applicable, the Bureau of 

Land Management or the appropriate Federal land management agency to inspect the operations, without advance 

notice or a search warrant and upon presentation of appropriate credentials, to determine whether the operations are in 

compliance with all applicable laws, regulations, notices and orders, and terms and conditions of the permit. 

(2) Any authorized representative of the regulatory authority and, as applicable, the Bureau of Land 

Management may, at reasonable times and without delay, have access to and copy any records and inspect any 

monitoring equipment or method of operation required under the Act, this subchapter and the permit, lease, license or 

mining plan in accordance with paragraph (a) of this section. 

(3) No search warrant shall be required with respect to any activity under paragraph (a) or (b) of this section, 

except entry into a building without consent of the person in control of the building. 

(c) Inspections. Inspections shall, to the extent practical, be conducted jointly if more than one government agency is 

involved. The regulatory authority shall coordinate inspections by Federal agencies and may request the participation 

of representatives from other Federal agencies when necessary to ensure compliance with this subchapter and other 

applicable Federal laws, regulations and orders. 

SECTION 740.19 - PERFORMANCE STANDARDS. 

(a) Operations and reclamation. 

(1) Surface coal mining and reclamation operations on lands subject to this Part shall be conducted in 

accordance with the performance standards of the applicable regulatory program. 

(2) Surface coal mining and reclamation operations on lands containing leased Federal coal shall be conducted 

in accordance with the requirements of the terms, conditions and stipulations of the lease issued under the Mineral 

Leasing Act and its implementing regulations in Part 211 of this title, as applicable, and the mining plan. 

(b) Completion of operations and abandonment. 

(1) Upon completion of operations, bonds shall be released in accordance with Section 740.15(d) of this 

chapter. 
(2) Where there is a Federal lease bond: 

(i) Not less than 30 days prior to permanent cessation or abandonment of surface coal mining and 

reclamation operations, the person conducting those operations shall submit to OSM, in duplicate, a notice of intention 

to cease or abandon those operations, with a statement of the number of acres affected by the operations, the extent 

and kind of reclamation accomplished and the structures and other facilities that are to be removed from or remain on 

the permit area. 

(ii) Upon receipt of this notice, the Bureau of Land Management and the appropriate Federal land 

management agency shall promptly make joint inspections to determine whether all operations have been completed in 

accordance with the requirements of Part 211 of this title, the lease or licenses and the mining plan. Where all of these 

requirements have been complied with, the liability under the lease bond of the person conducting surface coal mining 

and reclamation operations shall be terminated. 

(3) Where OSM is the regulatory authority, public hearings held with respect to final abandonment and 

releases of the performance bonds shall be in accordance with 5 U.S.C. 554 and 43 CFR Part 4. 

PARTS 741, 742, 743 AND 744 -- [REMOVED] 

 7. Parts 741, 742, 743 and 744 are removed. 

 8. Part 745 is revised to read as follows: 

PART 745 -- STATE-FEDERAL COOPERATIVE AGREEMENTS 

Section 

745.1 Scope. 

745.10 Information collection. 

745.11 Application and agreement. 

745.12 Terms. 

745.13 Authority reserved by the Secretary. 

745.14 Amendments. 

745.15 Termination. 

745.16 Reinstatement. 

 Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq. 

SECTION 745.1 - SCOPE. 

 This Part sets forth requirements for the development, approval and administration of cooperative agreements under 

section 523(c) of the Act. 

SECTION 745.10 - INFORMATION COLLECTION. 

 The information collection requirements contained in this part have been approved by OSM of Management and 

Budget under 44 U.S.C. 3507 and assigned clearance number 1029-0028. The information is being collected pursuant 

to section 523(c) of the Act (30 U.S.C. 1273(c)) and will be used to support a State's request for a State-Federal 

cooperative agreement or an amendment, termination or reinstatement thereto. 

 

 The obligation to respond to the information collection requirements of this part is mandatory. 
SECTION 745.11 - APPLICATION AND AGREEMENT. 

(a) The Governor of any State may request that the Secretary enter into a cooperative agreement with the State, 

provided the State has an approved State regulatory program or has submitted a regulatory program for approval 

under Part 731 of this chapter, and has or may have within the State surface coal mining and reclamation operations on 

Federal lands. 

(b) A request for a cooperative agreement shall be submitted in writing and, except to the extent previously submitted 

in the State program, shall include the following information: 

(1) Information sufficient for OSM to make findings in accordance with paragraph (f) of this section; 

(2) A proposed agreement consistent with the requirements of this Part; and 

(3) A certification by the Attorney General or the chief legal officer of the State regulatory authority that no 

State statutory, regulatory or legal constraint exists which would preclude the State regulatory authority from fully 

carrying out the proposed cooperative agreement. 

(c) OSM shall publish a notice of the request and the full text of the terms of the proposed cooperative agreement as 

submitted or as subsequently modified by OSM and the State in the Federal Register as a proposed rule. A notice of 

the request and a summary of the terms of the proposed agreement shall also be published in a newspaper(s) of general 

circulation throughout the State. Both notices shall include: 

(1) The location at which a copy of the request submitted by the State may be obtained; and 

(2) A date, not less than 30 days after publication of the notices, before which members of the public may 

submit written comments on the request and the person to whom comments should be addressed. 

(d) A public hearing shall be held within the comment period in a suitable location in the State requesting the 

cooperative agreement. This hearing may be combined with public hearings required under Part 732 of this chapter for 

the Secretary's consideration of approval of a State program submission, if appropriate. The date, time and place of the 

public hearing(s) on the request will be published in the Federal Register not less than 15 days prior to the date of the 

hearing. 

(e) Before the expiration of the comment period, OSM shall consult with the Bureau of Land Management, Fish and 

Wildlife Service, and Federal land management agencies, as appropriate, with respect to the proposed cooperative 

agreement. 

(f) OSM shall recommend to the Secretary that a cooperative agreement be entered into with a State, if OSM finds 

that: 

(1) The State has an approved State regulatory program; 

(2) The State regulatory authority has sufficient budget, equipment and personnel to enforce fully its 

regulatory program on lands subject to this Part in the State; and 

(3) The State has the legal authority to enter into the cooperative agreement. 

(g) The Secretary shall publish in the Federal Register his or her decision with respect to a request by a State to enter 

into a cooperative agreement and the reasons therefor and the full text of the cooperative agreement. 

SECTION 745.12 - TERMS. 

 Each cooperative agreement shall include: 

(a) Terms obligating the State regulatory authority to inspect all surface coal mining and reclamation operations on 

Federal lands in accordance with the State regulatory program and to enforce the State program on Federal lands; 

(b) A description of the powers and authority reserved by the Secretary, including, but not limited to, those specified 

under Section 745.13; 
(c) Provisions for the administration and enforcement by OSM and the State of this subchapter so as to minimize 

overlap and duplication; 

(d) Provisions for regular reports by the State regulatory authority to OSM on the results of the State's implementation 

and administration of the cooperative agreement. 

(e) Terms requiring the State regulatory authority to maintain sufficient personnel and facilities to comply with the 

terms of the cooperative agreement, and to notify OSM of any substantial change in State statutes, regulations, 

funding, staff, or other changes which would affect the State's ability to carry out the terms of the cooperative 

agreement; 

(f) Terms for coordination among the State regulatory authority, the Federal land management agency, the Bureau of 

Land Management and OSM; 

(g) Terms obligating the State regulatory authority to -- 

(1) Make available to OSM information on any action taken regarding any permit application for surface coal 

mining and reclamation operations on Federal lands; and 

(2) Where lands containing leased Federal coal are involved, provide OSM, in the form specified by OSM in 

consultation with the State, with written findings indicating that each permit application is in compliance with the terms 

of the regulatory program and a technical analysis of each permit application to assist OSM in meeting its 

responsibilities under other applicable Federal laws and regulations. 

SECTION 745.13 - AUTHORITY RESERVED BY THE SECRETARY. 

 The Secretary shall not delegate to any State, nor shall any cooperative agreement under this Part be construed to 

delegate to any State, authority to -- 

(a) Designate Federal lands as unsuitable for surface coal mining under subchapter F of this chapter or terminate such 

designations; 

(b) Comply with the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321 et seq., and Federal 

laws and regulations other than SMCRA; 

(c) Develop land use management plans for Federal lands where the surface estate is Federally-owned; 

(d) Regulate non-coal mining activities on Federal lands; 

(e) Determine when, where, and how to lease Federal coal and how much to lease; 

(f) Develop terms for Federal coal leases, including any special terms relating to mining and reclamation procedures; 

(g) Evaluate Federal coal resources; 

(h) Establish royalties, rents, and bonuses charged in connection with Federal coal leases; 

(i) Approve mining plans or modifications thereto; 

(j) Enforce Federal lease terms, including diligent development and maximum economic recovery requirements; 

(k) Approve or determine post-mining land uses for Federal lands where the surface estate is Federally-owned; 

(l) Release Federal lease bonds; 
(m) Evaluate the State's administration and enforcement of the approved State program and implementation of the 

cooperative agreement on Federal lands; 

(n) Comply with the inspection, enforcement and civil penalties requirements of Parts 842 and 843 of this chapter 

except as provided under Section 740.4(c)(5) of this chapter; 

(o) Determine valid existing rights for surface coal mining and reclamation operations on Federal lands within the 

boundaries of any areas specified under section 522(e) (1) or (2) of the Act; or 

(p) Determine that there are no significant recreational, timber, economic, or other values which may be incompatible 

with surface coal mining and reclamation operations on any Federal lands within the boundaries of any national forest 

under section 522(e)(2) of the Act. 

SECTION 745.14 - AMENDMENTS. 

 A cooperative agreement which has been approved pursuant to Section 745.11 may be amended by mutual 

agreement of the Secretary and the Governor of a State. Amendments shall be adopted by Federal rulemaking, in 

accordance with Section 745.11. 

SECTION 745.15 - TERMINATION. 

(a) A cooperative agreement may be terminated by the State upon written notice to the Secretary, specifying the date 

upon which the cooperative agreement shall be terminated. The date of termination shall not be less than 90 days from 

the date of the notice. 

(b) A cooperative agreement may be terminated by the Secretary after giving notice to the State regulatory authority 

and affording the State regulatory authority and the public an opportunity for a public hearing and comment period, in 

accordance with the cooperative agreement, if the Secretary finds that: 

(1) The State regulatory authority has substantially failed to comply with the requirements of this subchapter, 

the State program, or the cooperative agreement, or 

(2) The State regulatory authority has failed to comply with any undertaking by the State in the cooperative 

agreement upon which approval of the State program, cooperative agreement, or grant by OSM for administration or 

enforcement of the State program or cooperative agreement was based. 

(c) A cooperative agreement shall terminate -- 

(1) When no longer authorized by Federal law or the applicable State laws and regulations; or 

(2) Upon termination or withdrawal of the Secretary's approval of the applicable State program. 

SECTION 745.16 - REINSTATEMENT. 

(a) A State may apply for reinstatement of the cooperative agreement by providing written evidence to OSM that the 

State has remedied all defects for which the agreement was terminated and is fully capable of carrying out the 

cooperative agreement. Any reinstatement shall be by Federal rulemaking in accordance with Section 745.11. 

(b) OSM may recommend approval of the reinstatement to the Secretary if it finds that the State meets all the 

requirements for the initial approval of a cooperative agreement under this subchapter. 

(c) The Secretary may approve reinstatement of a cooperative agreement if the Secretary concurs in findings of OSM 

which recommended that approval. 
 9. Part 746 is added to Subchapter D to read as follows: 

PART 746 -- REVIEW AND APPROVAL OF MINING PLANS 

Section 

746.1 Scope. 

746.11 General requirements. 

746.10 Information collection. 

746.13 Decision document and recommendation on mining plan. 

746.14 Approval of mining plan. 

746.17 Term of approval. 

746.18 Modification of approved mining plans. 

 Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq. 

SECTION 746.1 - SCOPE. 

 This Part provides the process and requirements for the review and approval, disapproval or conditional approval of 

mining plans on lands containing leased Federal coal. 

SECTION 746.10 - INFORMATION COLLECTION. 

 The information collection requirements contained in this section have been approved by OSM of Management and 

Budget under 44 U.S.C. 3507 and assigned clearance number 1029-0026. The information is being collected to 

determine compliance with section 523 of the Act (30 U.S.C. 1273) and this part. The obligation to respond to the 

information collection requirements of this Part is mandatory. 

SECTION 746.11 - GENERAL REQUIREMENTS. 

(a) No person shall conduct surface coal mining and reclamation operations on lands containing leased Federal coal 

until the Secretary has approved the mining plan. 

(b) Surface coal mining and reclamation operations on lands containing leased Federal coal shall be conducted in 

accordance with a permit issued in accordance with this subchapter, any lease terms and conditions, and the approved 

mining plan. 

SECTION 746.13 - DECISION DOCUMENT AND RECOMMENDATION ON MINING PLAN. 

 OSM shall prepare and submit to the Secretary a decision document recommending approval, disapproval or 

conditional approval of the mining plan to the Secretary. The recommendation shall be based, at a minimum, upon: 

(a) The permit application package, including the resource recovery and protection plan; 

(b) Information prepared in compliance with the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.; 

(c) Documentation assuring compliance with the applicable requirements of other Federal laws, regulations and 

executive orders other than the Act; 

(d) Comments and recommendations or concurrence of other Federal agencies, as applicable, and the public; 
(e) The findings and recommendations of the Bureau of Land Management with respect to the resource recovery and 

protection plan and other requirements of the lease and the Mineral Leasing Act; 

(f ) The findings and recommendations of the regulatory authority with respect to the permit application and the State 

program; and 

(g) The findings and recommendations of OSM with respect to the additional requirements of this subchapter. 

SECTION 746.14 - APPROVAL, DISAPPROVAL OR CONDITIONAL APPROVAL, OF MINING PLAN. 

 The Secretary shall approve, disapprove or conditionally approve the mining plan in accordance with this part. 

SECTION 746.17 - TERM OF APPROVAL. 

(a) Each mining plan approval shall cover the operations for which a complete permit application package was 

submitted, unless otherwise indicated in the approval. 

(b) An approved mining plan shall remain in effect until modified, cancelled or withdrawn and shall be binding on any 

person conducting mining under the approved mining plan. 

SECTION 746.18 - MINING PLAN MODIFICATION. 

(a) Mining plan modifications shall be approved by the Secretary. 

(b) The approval of mining plan modifications shall be in accordance with the procedures of this part for mining plan 

approval. 

(c) Surface coal mining and reclamation operations on lands containing leased Federal coal pursuant to a permit 

revision issued by the regulatory authority shall not commence until -- 

(1) OSM determines that the permit revision does not constitute a mining plan modification under this 

section, or 

(2) If the permit revision constitutes a mining plan modification under this section, such modification has been 

approved by the Secretary. 

(d) Permit revisions constitute mining plan modifications if they meet any of the following criteria: 

(1) Any change in the mining plan which would affect the conditions of its approval pursuant to Federal law 

or regulation other than the Act; 

(2) Any change which would adversely affect the level of protection afforded any land, facility or place 

designated unsuitable for mining; 

(3) Any change in the location or amount of coal to be mined, except where such change is the result of: 

(i) A minor change in the amount of coal actually available for mining from the amount estimated; or 

(ii) An incidental boundary change; 

(4) Any change which would extend coal mining and reclamation operations onto leased Federal coal lands 

for the first time; 

(5) Any change which requires the preparation of an environmental impact statement under the National 

Environmental Policy Act or 1969, 42 U.S.C. 4321 et seq .; 

(6) Any change in the mining operations and reclamation plan that would result in a change in the postmining 

land use where the surface is Federally-owned. 
[FR Doc. 83-3941 Filed 2-15-83; 8:45 am] 

BILLING CODE 4310-05-M