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U·- S· DEPARTMENT OF THE INTERIOR Su.biKtNwnbc: 

OFFICE OF SURFACE MININGt:R-Ec_-":"'"~~-:----1 RECLAMATION AND ENFORCEMENT T~~ Nwnber: 

DIRECTIVES SYSTEM D•NOV 211991 

Subject: Policy and P:r:ocedu;::_es }or Maintaining Confidentiality 

AnnMcation InforAri.ft-LtYn 

of Permit 

1,1 / / 1~ Purpose. This directive establishes policy and procedures concerning the review and handling o.f information submitted as a 

part of an application for an exploration permit, a mining permit, permit revision or permit renewal, or an exemption for 

coal extraction incidental to the extraction of other minerals 

and designated as confidential in writing by the applicant that 

may be protected under the applicable confidentiality provisions of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) and its implementing regulations. This directive applies to all 

Office of Surface Mining Reclamation and Enforcement (OSM) employees processing these applications for operations on Indian 

lands, Federal lands in non-cooperative agreement States, Federal 

lands where the State has not been delegated full permitting authority pursuant to a cooperative agreement, and in States 

where OSM has instituted a Federal program. 

2. Summary. This directive includes chang-es to OSM Directive 

REG-15 dated June 14, 1989 to clarify policy and procedures and 

to include confidentiality requirements for applications for 

exemptions from the requirements of SMCRA for coal extraction 

incidental to the extraction of other minerals pursuant to 30 CFR 

Part 702. 

3. Definitions. 

a. Application. The documents and other information filed 

with the regulatory authority under 30 CFR Chapter VII for the 

issuance of permits, revisions, renewals, and transfer, assignment, or sale of permit rights for surface coal mining and 

reclamation operations, for coal exploration, or for exemptions from the requirements of SMCRA for coal extraction incidental to 

the extraction of other minerals. 

b. Confidential Information. In the context of this 

directive --

(1) For mining permits, revisions, and renewals, confidential information is defined as, and limited to, the 

information that has been clearly identified as confidential by 

the applicant and submitted separately from the remainder of the 

application, and pertains only to the analysis of the chemical 

and physical properties of the coal to be mined, except 

OSM/103 7/22/86 
inf·ormation on components of such coal which are potentially 

toxic in the environment, or is required under section 508 of 

SMCRA, but is not on public file pursuant to State law. 

(2) For ·exploration permits, confidential information 

is defined as, and limited to, information concerning trade 

secrets or privileged commercial or financial information 

relating to the competitive rights of the persons intending to 

conduct coal exploration, that the applicant has requested in 

writing be kept confidential. 

(3) For applications for exemptions from the 

requirements of SMCRA for coal extraction incidental to the 

extraction ·Of other minerals, confidential information is defined 

as and limited to, information concerning trade secrets or 

privileged commercial or financial information of the persons intending to conduct extraction of other minerals, that the 

applicant has requested in writing be kept confidential. 

c. Federal Permitting Entity CFPEl. The OSM organizational unit with responsibility for receiving and processing 

applications, i.e., the Western Support Center (WSC) office or 

the Division of Tennessee Permitting (DTP). 

4 • Pol icy/Procedures. 

a. Policy. Sections 507(b)(17), 508(a)(12), 508(b) and 

512(b) of SMCRA, and 30 CFR 773.13(d), 772.15(b) and (c), and 

702.13(b) and (c), establish requirements with respect to the 

confidentiality of application materials for surface coal mining 

permits, coal explo.ration permits and exemptions from the 

requirements of SMCRA for coal extraction incidental to the 

extraction ·Of other minerals. In Federal program States and on 

Indian lands the confidentiality requirements of 508(b) relating 

to provisions of State law do not apply, because State law is not 

in ·effect in a Federal program State. 

Information labeled confidential by the applicant shall be 

reviewed by the FPE for possible withholding from public 

disclosure. The FPE shall ensure that adequate public notice and 

opportunity to be heard is afforded persons both seeking and 

opposing disclosure of information labeled confidential by the 

applicant. The FPE will, if requested, hold public meetings, informal conferences, or public hearings, as appropriate, 

concerning the disclosure or non-disclosure of application 

information labeled confidential. In reaching its decision, the 

FPE shall consider the established requirements, the oral and 

written comments of these persons seeking and opposing disclosure 

of application information labeled confidential. 

2 
b. Procedures. 

(1) Submission of Application. The FPE provides 

prospective applicants with an information sheet that outlines 

how confidential information in an application should be 

identified, when confidentiality is requested. Prospective 

applicants are advised that a decision by OSM to release 

application information labeled confidential by the applicant may 

delay processing of the permit application and may require public 

notice and opportunity to comment on the newly released 

information .if the quantity of material disqualified is large or 

if substantial controversy exists. 

Information that the applicant wishes to be kept confidential 

must be clearly identified by the applicant and submitted in a 

form separate from the remainder of the application. The FPE 

should advise the applicant to mark the cover or title page of 

the application with ·a statement that alerts the reviewer to the 

presence of information that the applicant believes is properly 

treated as confidential and states the specific basis for this 

belief. In addition, the FPE should also advise the applicant to 

mark each sheet to which it wishes to restrict access with the 

words: "Confidential Information pursuant to [30 CFR 773.13(d), 

772.15(b), 702.13(b) or State or Federal program equivalent]." 

(2) Public Notice. The FPE reviews any information 

that the applicant has labeled as confidential. The FPE, after 

determining that the application is administratively complete, 

notifies the applicant to publish the newspaper advertisement 

required by 30 CFR 773.13(a) (1) for mining permits, 30 CFR 

772.12(c) for exploration permits, or 30 CFR 702.12(i) for 

exemptions from the requirements of SMCRA for coal extraction 

incidental to the extraction of other minerals, or the State or 

Federal program counterparts thereof, and to include a concise 

statement describing in general terms the nature of the 

information proposed to be withheld from disclosure and the 

reason for this request. The advertisement must also inform 

persons both seeking and opposing disclosure how to express their 

opinions and to whom. In addition, the information contained in 

the advertisement is .to be placed in all copies of the 

application on file for public review. 

(3) Public Comment. The FPE provides an opportunity 

for public comment on confidentiality-related matters and handles 

any comments in a manner consistent with the procedures outlined 

in 30 CFR 773.13(b) for mining permits, 30 CFR 772.12(c) for 

exploration permits, 30 CFR 702.11(d) for exemptions from the 

requirements of SMCRA for coal extraction incidental to the 

extraction ·Of other minerals, or the applicable State or Federal 

program counterparts thereof. 

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(4) Determination of Confidentiality. Prior to 

completing the first technical review of the application, the FPE 

makes a determination as to the confidentiality of the 

application information labeled confidential by the applicant. 

The FPE should make the det·ermination within 30 days of the last 

publication of the newspaper advertisement specified under 

paragraph 4.b.(2) above, unless additional time is necessary to 

obtain public comment or as a result of unforeseen circumstances. 

For exemptions from the requirements of SMCRA for coal extraction 

incidental to the extraction of other minerals, the FPE should 

make the determination within 90 days after the filing of an 

administratively complete application unless additional time is 

necessary as a result of unforeseen circumstances. In reaching 

the decision, the FPE considers all public comments received. 

This decision should be reviewed by the appropriate Field 

Solicitor prior to being made public. The FPE promptly provides 

the applicant, commenters, and all other interested parties with 

written notification of the decision and their appeal rights. 

Application information labeled confidential by the applicant 

which the FPE determines to be qualified is not made available 

for public inspection. Any information labeled confidential by 

the applicant but subsequently disqualified by the FPE is to be 

made available for public inspection in accordance with 30 CFR 

702.13(a), 772.15(a), or 773.13(a) (2), or the State or Federal 

counterpart thereof, no sooner than 20 days and no later than 30 

days (unless the decision is under appeal) a.fter notice of the 

disqualification is received by the applicant and other parties. 

(Verification of receipt of the notice of disqualification may be 

made by return receipt mail). The applicant, and any other party 

with an interest that may be adversely affected by the decision, 

has the right to appeal the decision to the Interior Board of 

Land Appeals within 20 days of receipt of the notice. If the 

decision is under appeal, the information is withheld from 

public inspection pending a final decision on the appeal. If the 

quantity of material disqualified is large, or if substantial 

controversy exists, the FPE may reopen the public comment period 

on the application and may require the applicant to issue an 

appropriate public notice, to give interested parties an 

opportunity to comment on the application in light of the newly 

disclosed information. 

(5) File Maintenance. In order to protect the 

integrity of qualified confidential informat.ion, the FPE, and any 

other OSM unit provided such information by the FPE, is required 

to maintain such information in locked files in a location 

separate from other permit application information on file for 

public review. Access is controlled by the respective heads of 

the appropriate FPE or other OSM offices maintaining such 

information. The FPE assures that each application in the public 

4 
access files contains a reference to the corresponding 

confidential file where appropriate. 

(6) Transfer of Confidential Information to Other 

Federal or .state Agencies. In order to protect the integrity 

of qualified confidential information when such information must 

be provided to other Federal or State agencies, the FPE advises 

the Federal or state agency that any such information is provided 

by the FPE solely to ensure cooperative implementation of SMCRA 

and its implementing regulations and must .be held confidential. 

To prevent the .unauthorized release of information or data 

designated as proprietary or confidential, the information or 

data will not be released without the written commitment by the 

requesting agency to comply with the agreement on the use or 

disclosure of the information requested. Confidential 

information on file should be copied for dissemination to other 

Federal or .State agencies, and should be returned to the FPE. It 

is not the responsibility of the FPE to det·ermine if the 

receiving agency has adequate facilities to safeguard the 

information. Appendix 1 is an example of a non-disclosure 

agreement. 

5. Reporting Requirements. None. 

6. Effect on Other Documents. This directive supersedes 

Directive REG-15, Transmittal Number 548, dated June 14, 

1989. 

7. References. 30 CFR 702.11, 702.12, 702.13, 772.12, 772.15 

773.13, and 43 CFR Part 4. 

8. Effective Date. This directive is effective upon issuance. 

9. Contact. Chief, Branch of Federal and Indian Programs, (FTS) 

268-2533. 

10. Keywords: Confidentiality, Confidential Information. 

5 
Appendix 1 

EXAMPLE OF A NON-DISCLOSURE AGREEMENT 

Upon request, OSM will provide to a requesting Federal or State 

agency confidential information relevant to surface coal mining 

and reclamation operations proposed or approved in a complete 

permit application. Any such information is provided by OSM 

solely to ensure cooperative implementation of SMCRA and its 

implementing regulations and must be held confidential. 

The requesting agency agrees to prevent unauthorized release of 

information and data supplied by OSM and identified as 

confidential. 

In order to protect the integrity of qualified confidential 

information the requesting agency agrees to maintain such 

information in locked files in a location separate from other 

permit application or other information on file for public 

review. Access shall be controlled by the respective heads of 

the appropriate offices maintaining such information. OSM 

assures that each application in the public access files contains 

a reference to the corresponding confidential file where 

appropriate. 

Use or disclosure of the information described below is 

restricted under the provisions of [30 CFR 773.13(d) (3) for 

mining permits; 30 CFR 772.15(b) for exploration permits; 30 CFR 

702.13(b) for exemption from coal extraction incidental to the 

extraction of other minerals; or the State or Federal program 

counterpart thereof]. 

Description of requested information: 

I agree to the above .terms and conditions and to safely return 

the requested information as soon as it is no longer needed. 

Requesting Official 

Requesting Agency 

Date