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4310-05-P 

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 733, 736, and 842 

[Docket ID: OSM-2019-0010; S1D1S SS08011000 SX064A000 212S180110; S2D2S 

SS08011000 SX064A00 21XS501520] 

RIN 1029-AC77

Clarification of Provisions Related to the Issuance of Ten-Day Notices to State Regulatory 

Authorities and Enhancement of Corrective Action for State Regulatory Program Issues

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

ACTION: Final rule.

SUMMARY: On May 14, 2020, the Office of Surface Mining Reclamation and Enforcement 

(OSMRE) published a proposal (85 FR 28904) to clarify the Federal regulations about how 

OSMRE notifies State regulatory authorities, via issuance of a ten-day notice (TDN), of possible 

violations of any requirement of the Surface Mining Control and Reclamation Act of 1977 

(SMCRA). This final rule adopts, with minor adjustments, much of OSMRE’s proposals to 

streamline the process for OSMRE’s coordination with State regulatory authorities in order to 

minimize duplication of inspections, enforcement, and administration of SMCRA. This final rule 

comports with the specific language of SMCRA, remedies internal disparate application of 

existing regulations, and will operate to ensure more effective enforcement of SMCRA. 

Additionally, the final rule will enhance the procedures for early identification of, and 

implementation of corrective action to address, State regulatory program issues. 

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

PUBLICATION IN THE FEDERAL REGISTER].
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FOR FURTHER INFORMATION CONTACT: Kathleen G. Vello, OSMRE, Division of 

Regulatory Support, 1849 C Street, NW, Mail Stop 4558, Washington, D.C. 20240, telephone 

number: (202) 208-1908. If you use a telecommunications device for the deaf (TDD), call the 

Federal Relay Service at: (800) 877-8339. 

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents

I. Background and Overview of the Final Rule

A. Background

B. Key Provisions of the Final Rule

C. Summary of Changes Since the Proposed Rule

II. Summary of Public Comments

A. Overview of Comments

B. OSMRE Provided an Adequate Period to Comment on the Proposed Rule,

and Hearings Were Not Necessary

C. The Final Rule is Properly Characterized as a Clarification

D. This Final Rule Neither Inhibits a Citizen’s Ability to Report Violations to

OSMRE Nor Limits OSMRE’s Ability to Exercise Oversight Enforcement

E. OSMRE’s Authorized Representative Will Continue to Formulate “Reason

to Believe” As Mandated by SMCRA; This Includes Using Best Professional

Judgment

F. It is Important to Clarify that “Any Information” Under 30 U.S.C. 1271(a)

Includes Information from the State Regulatory Authority

G. Citizens’ Ability to Request Federal Inspections Is Not Diminished

H. OSMRE’s Enhancement to the Existing 30 CFR Part 733 Process is Aimed at

Addressing State Regulatory Program Issues Early and Promptly Resolving

the Issues

I. Interrelationship of 30 CFR Part 733 and 30 CFR Part 842
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J. Specific Responses to Other Comments Received About the Proposed Rule

III. Discussion of the Final Rule and Section-by-Section Analysis

IV. Procedural Determinations

A. Statutes

1. Congressional Review Act

2. Data Quality Act

3. National Environmental Policy Act

4. National Technology Transfer and Advancement Act

5. Paperwork Reduction Act

6. Regulatory Flexibility Act

7. Small Business Regulatory Enforcement Fairness Act

8. Unfunded Mandates Reform Act

B. Executive Orders

1. Executive Order 12630—Governmental Actions and Interference with

Constitutionally Protected Property Rights

2. Executive Order 12866—Regulatory Planning and Review and Executive

Order 13563—Improving Regulation and Regulatory Review

3. Executive Order 12988—Civil Justice Reform

4. Executive Order 13045—Protection of Children from Environmental Health

Risks and Safety Risks

5. Executive Order 13132—Federalism

6. Executive Order 13175—Consultation and Coordination with Indian Tribal

Governments

7. Executive Order 13211 – Actions Concerning Regulations That Significantly

Affect Energy Supply, Distribution, or Use
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8. Executive Order 13771—Reducing Regulation and Controlling Regulatory

Costs

9. Executive Order 13783—Promoting Energy Independence and Economic

Growth

I. Background and Overview of the Final Rule

A. Background

SMCRA requires the Secretary of the Interior, acting through OSMRE, to, among other 

things, “publish and promulgate such rules and regulations as may be necessary to carry out the 

provisions of [SMCRA]” and to “cooperate with...State regulatory authorities to minimize 

duplication of inspections, enforcement, and administration of [SMCRA].” 30 U.S.C. 1211(c)(2) 

and (12). Consistent with these statutory obligations, based on OSMRE’s 43 years of experience 

administering SMCRA, after consultation with OSMRE’s State regulatory authority partners, 

and after consideration of public comments received on the proposed rule, OSMRE is finalizing 

its proposal to enhance the early identification of State regulatory program issues and clarify the 

regulations found at 30 CFR 842.11 and 842.12 to state, among other things, that, before issuing 

a notification to a State regulatory authority when a possible violation exists, OSMRE will 

consider any information readily available. OSMRE’s final rule will reduce inefficiencies by 

ensuring that, before OSMRE issues a TDN to a State regulatory authority, OSMRE considers 

any readily available information about the alleged violation, including information that a State 

regulatory authority may provide. OSMRE’s consideration of this information is critical because 

a State regulatory authority has primary enforcement responsibility under its State regulatory 

program. Thus, the final rule eliminates duplication of inspection and enforcement under 

SMCRA by clarifying that OSMRE’s authorized representative will consider all readily available 
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information, from any source, including any information provided by the State regulatory 

authority, before issuing a notification of an alleged violation, in the form of a TDN, to that State 

regulatory authority. Also, the final rule clarifies the meaning of the statutory terms “appropriate 

action” and “good cause,” as used in 30 CFR 842.11, to better describe the State regulatory 

authority’s action that will qualify as “appropriate action” or scenarios in which a State 

regulatory authority’s inaction may have “good cause” after OSMRE notification that a possible 

violation exists. Examples of what constitutes a State regulatory authority’s “appropriate action” 

in response to a TDN or “good cause” for not taking an action in response to a TDN are in the 

existing regulations; however, in OSMRE’s experience, the existing examples and explanations 

of what qualify as an “appropriate action” or “good cause” for inaction are not exhaustive and do 

not fully reflect the array of in-the-field scenarios. 

In addition, because OSMRE must evaluate whether a State regulatory authority has 

taken appropriate action or has good cause for inaction with respect to a possible violation, 

OSMRE has observed that not all issues that are raised in the TDN process warrant a Federal 

inspection,1

 but they may require further evaluation and action as they may raise issues with how 

a State is implementing its approved State regulatory program. To address these issues 

comprehensively and to ensure more complete and efficient enforcement of SMCRA, OSMRE 

has expanded 30 CFR Part 733 to add procedures for corrective action of State regulatory 

program issues, including implementation of action plans. As finalized, 30 CFR Part 733 

includes definitions of the terms “action plan” and “State regulatory program issue” and adopts a 

mechanism for early identification and corrective action to address State regulatory program 

issues. We refer to these added procedures and definitions in this preamble as the “enhanced 

1 A Federal inspection in the context of 30 U.S.C. 1271(a) is an inspection of a surface coal mining and 

reclamation operation conducted by an OSMRE authorized representative.
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Part 733 process.” 

The final rule is consistent with SMCRA and will add transparency to OSMRE’s 

oversight responsibilities; promote regulatory certainty for State regulatory authorities, regulated 

entities, and the public; enhance OSMRE’s relationship with the State regulatory authorities; 

reduce redundancy in inspection and enforcement; and streamline the process for notifying State 

regulatory authorities of possible violations. 

B. Key Provisions of the Final Rule

OSMRE is adopting the following key provisions from the proposed rule in this final 

rule:

• Enhancement of 30 CFR Part 733: Early Identification and Corrective Action.

The regulations at existing 30 CFR Part 733 establish requirements for the maintenance of State 

regulatory programs, as well as the procedures for the rare remedy of substituting Federal 

enforcement for State enforcement of State regulatory programs and withdrawing approval of 

State regulatory programs. In coordination with State regulatory authorities, OSMRE has 

determined that mechanisms exist for addressing identified State regulatory program issues to 

avoid the need to substitute Federal enforcement for State enforcement of a State regulatory 

program. In this final rule at section 733.12, OSMRE is codifying this existing OSMRE practice 

of identifying State regulatory program issues and ensuring that prompt corrective action is 

taken. 

• Clarification of Distinction Between OSMRE Enforcement Actions under

30 U.S.C. 1271(a) and (b). 

The TDN and Federal inspection process in 30 U.S.C. 1271(a) applies to oversight 

enforcement of alleged violations at specific sites. In this preamble, we refer to these 

types of OSMRE oversight actions (TDNs and Federal inspections) that OSMRE may 
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take under 30 U.S.C. 1271(a) as “site-specific” enforcement actions. Congress 

differentiated these site-specific enforcement actions from the type of actions that 

OSMRE may take under the State regulatory program enforcement provisions of 30 

U.S.C. 1271(b), which are aimed at ensuring that a State regulatory authority is properly 

enforcing its approved State program. This type of OSMRE oversight action under 30 

U.S.C. 1271(b) is intended to address what we will refer to in this preamble as a “State 

regulatory program issue” and which could, in the most serious circumstances, result in 

revocation of all or part of a State program. OSMRE recognizes that its review of State 

regulatory authority permit issuance guidelines and practices generally are systemic in 

nature and that those guidelines and practices squarely fall within a State regulatory 

authority’s implementation, administration, enforcement, and maintenance of an

approved program. In this final rule, OSMRE further clarifies the distinction between the 

situations to which 30 U.S.C. 1271(a) and (b) apply, while also recognizing that there 

may be situations in which OSMRE becomes aware of a State regulatory authority that is

not adequately implementing, administering, maintaining, or enforcing a part or all of a 

State program (governed by 30 U.S.C. 1271(b) and the implementing regulations at 30 

CFR Part 733) in the course of OSMRE’s oversight enforcement of alleged violations at 

specific mine sites (governed by 30 U.S.C. 1271(a) and the implementing regulations at 

30 CFR Part 842). In acknowledgement of OSMRE’s obligation to resolve 30 U.S.C. 

1271(a) site-specific violations and 30 U.S.C. 1271(b) State regulatory program issues

using two separate mechanisms, this final rule clarifies in 30 CFR 842.11(b)(1)(ii)(B)(3) 

that a State regulatory authority may be deemed to have taken appropriate action in 

response to a TDN if corrective action to resolve an identified State regulatory program 
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issue has been initiated consistent with the final rule section 733.12. 

• Nothing in this Final Rule Prevents OSMRE From Issuing A TDN for a SiteSpecific Violation. 

Despite the two separate enforcement mechanisms outlined in 30 U.S.C. 1271(a) and (b), these

SMCRA enforcement provisions may still overlap in practice. As alluded to above, and 

discussed more thoroughly in response to public comments below, OSMRE maintains its legal 

position that SMCRA authorizes OSMRE to issue a TDN to a State regulatory authority, if a 

State regulatory program issue results in or may imminently result in a violation of an approved 

State program. Specifically, in these situations, under final section 733.12(d), OSMRE may still 

take a direct site-specific enforcement action. 

• Before issuing a TDN, OSMRE Will Consider All Readily Available Information from

Any Source.

OSMRE proposed to clarify that when formulating a decision about whether there is reason to 

believe that a possible violation exists for purposes of direct enforcement under 30 U.S.C. 

1271(a)(1), it will consider all readily available information, including information it receives 

from the State regulatory authority, about an alleged violation. (Throughout this preamble, we 

will, at times, use an abbreviated way of referring to this decision-making process about whether 

there is reason to believe that a possible violation exists as “formulating reason to believe” or 

simply as “reason to believe” in quotation marks). OSMRE is adopting this clarification in this 

final rule, with a minor modification, which specifies that OSMRE will consider all readily 

available information it receives from “any source” in order to promote more efficient and 

effective enforcement of SMCRA.

C. Summary of Changes Since the Proposed Rule

OSMRE has made 11 revisions to the proposed rule in preparing this final rule. These 
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revisions are based on a process of reasoned decision-making, including reliance on over 43 

years of OSMRE experience overseeing the implementation of SMCRA, including review of 

past OSMRE data and practices, meaningful consideration of the 93 comments received from the 

public, and adherence to plain language principles to ensure regulatory clarity. Specific details of 

the final rule are discussed in finer detail in the section-by-section analysis below. For the ease of 

the public, a summary of the changes from the proposed rule to the rule being finalized today 

(organized by section, brief summary of the change, and succinct rationale for change) include: 

 Section Number Brief Summary of Change Rationale 

 30 CFR 733.5

(definition of “Action plan”) 

Insert “State” before 

“regulatory authority”.

OSMRE maintaining 

consistency and clarity. 

 30 CFR 733.12(a)(1) Substitute “any source” for 

“any person”.

Accommodate citizen

comments to allow the 

subsection to be more 

inclusive consistent 

with the intent of the 

proposed rule. 

 30 CFR 733.12(b) Change “State regulatory 

program issues” to singular “a 

State regulatory program issue”. 

OSMRE maintaining 

consistency and clarity.

 30 CFR 733.12(b) Substitute “a violation of the

 approved State program” for

“an on-the-ground violation”. 

Accommodate citizen 

comments and OSMRE 

evaluation to ensure 

OSMRE preserves the 

ability to take 

enforcement 

action.

 30 CFR 733.12(b)(1)-(3) Change “action plans” to 

singular “action plan” in three 

instances.

OSMRE maintaining 

consistency and clarity. 
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 30 CFR 733.12(c) Insert “any associated action

plan” after “State regulatory

program issues”. 

OSMRE evaluation and 

accommodates citizen 

comments requesting 

transparency and review

of action plans that are 

found in Annual 

Evaluation reports. 

 30 CFR 733.12(c) Acknowledge that Annual 

Evaluations reports will 

be accessible on OSMRE’s 

website and at the applicable 

OSMRE office. 

Accommodate citizen 

comments and OSMRE 

evaluation to ensure 

transparency to the 

public. 

 30 CFR 733.12(d) Substitute “a violation of

the approved State program” 

for “an on-the-ground 

violation”. 

OSMRE evaluation and 

accommodates citizen 

comments about State 

regulatory program 

issues that may also

result in a site-specific

violation. 

 30 CFR 842.11(b)(1) Substitute “must” for “will”. OSMRE maintaining

consistency with the 

Federal Register and

Plain Language Act.

 30 CFR 842.11(b)(1)(i) Add, “from any source, including

any information a citizen

complainant or the relevant State

regulatory authority submits,” 

OSMRE evaluation to 

specifically state the 

intention of the 

clarification.

30 CFR 842.11(b)(2) Change to conform to 30 CFR 

842.11(b)(1)(i). 

Accommodate citizen 

comments requesting 

consistency between this 

subsection and 30 CFR 

842.11(b)(1)(i). 
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II. Summary of Public Comments

A. Overview of Comments

OSMRE received 93 written comments on the proposed rule, consisting of hundreds of 

pages of text. The majority of the comments received were from individuals, who reside in many 

different States, including some States that do not have coal mining. The States in which these

commenters reside include: Alaska, California, Colorado, Illinois, Indiana, Kentucky, 

Massachusetts, Missouri, Montana, New Mexico, North Carolina, North Dakota, Pennsylvania, 

Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming. The 

majority of the individual comments originated from citizens residing in Montana. The 39 

comments received from Montana residents were almost identical in nature. As discussed further 

below, these commenters generally objected to the proposed rule, requested an extended 

comment period, and suggested that public hearings should be held in the “4 coal regions” within 

the United States. Additionally, several other individual commenters referenced support for nongovernmental organizations (NGOs) within their comments that generally disapproved of the 

proposed rule without giving specific rationale. For example, six commenters supported Coal 

River Mountain Watch and provided very similar comments opposed to the proposed rule. 

Additionally, many comments either supported other comments and incorporated them by 

reference or were submitted on behalf of multiple parties. Most of the comments representing 

multiple parties were submitted on behalf of NGOs. OSMRE received comments from the 

following NGOs: Alaska Center, Alaska Community Action on Toxics, Appalachian Citizens’ 

Law Center, Appalachian Mountain Advocates, Appalachian Voices, Black Warrior 

Riverkeeper, Inc., Castle Mountain Coalition, Center for Biological Diversity (CBD), Citizens 

Against Longwall Mining, Citizens Coal Council (CCC), Coal River Mountain Watch, 
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Conservation Council for Hawaii, Cook Inlet Keeper, Dakota Resource Council, Earthworks, 

Eastern Pennsylvania Coalition for Abandoned Mine Reclamation, Endangered Habitats League, 

Foundation for Pennsylvania Watersheds, Gila Resources Information Project, Great Old Broads 

for Wilderness, Heartwood, Kentuckians for the Commonwealth, Kentucky Resources Council, 

Inc., National Wildlife Federation, Native Plant Conservation Campaign, NH Audubon, 

Northern Plains Resource Council, NY4WHALES, Ohio Valley Environmental Coalition, Oil 

Change International, Powder River Basin Resource Council, Save Our Sky Blue Waters, Save 

the Scenic Santa Ritas, Sierra Club, Stand Up to Coal, The Lands Council, Trustees for Alaska, 

Turtle Island Restoration Network, West Virginia Highlands Conservancy, West Virginia Rivers 

Coalition, Western Nebraska Resources Council, Western Organization of Resource Councils, 

Western Watersheds Project, WildEarth Guardians, and Wilderness Workshop. With few 

exceptions, most of these commenters generally objected to the proposed rule, requested that the 

comment period be extended, and advocated for public hearings. A few of these commenters 

made suggestions on how to improve the proposed rule. As discussed in detail below, OSMRE 

has considered these suggestions and, in some circumstances, is adopting the suggestions in the 

final rule.

The following industry and trade groups submitted comments: Indiana Coal Council, 

Kentucky Coal Association, National Mining Association (NMA), and Virginia Coal and Energy 

Alliance. Generally, as discussed more fully below, these commenters supported the proposed 

rule and made suggestions for improvements. In some circumstances, OSMRE is incorporating 

suggestions made by these organizations in the final rule. 

A few State and quasi-governmental organizations provided comments, including the 

Central Illinois Healthy Community Alliance and the Interstate Mining Compact Commission 
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(IMCC) representing the following 27 States: Alabama, Alaska, Arizona, Arkansas, Colorado, 

Illinois, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, New Mexico, 

New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, 

Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. One of these commenters was

generally opposed to the proposed rule, while the other, IMCC, supported the proposed rule. 

B. OSMRE Provided an Adequate Period to Comment on the Proposed Rule and

Hearings Were Not Necessary

OSMRE provided a 30-day comment period for the proposed rule. OSMRE received many

comments requesting an extension of the comment period from an additional 30 days to an 

additional 180 days. One commenter, citing one of the purposes of SMCRA at 30 U.S.C. 

1202(i), essentially suggested that the alleged absence of “a reasonable comment period” 

deprived the public of meaningful participation in this rulemaking. OSMRE is aware of this 

statutory provision, but, as explained below, finds that the 30-day comment period was adequate 

for meaningful participation in this rulemaking. In contrast to the other commenters, a 

commenter stated that this rule was “long overdue” and that “additional time is not necessary for 

the formulation and submittal of comments on a 14-page Federal Register notice.” Additionally, 

many commenters requested that public hearings—virtual or in person when “safe”—be held, 

and many of those commenters, particularly the 39 commenters from Montana, requested that at 

least four public hearings be held in different coal regions across the country. Other commenters 

suggested that SMCRA requires OSMRE to offer to hold public hearings for rulemakings 

affecting SMCRA’s permanent regulatory program. These commenters opine that holding public 

hearings has been the standard and expected practice.

Section 553(c) of the Administrative Procedure Act (APA) requires that agencies, such as 
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OSMRE, provide “interested persons an opportunity to participate in the rule making through 

submission of written data, views, or arguments with or without an opportunity for oral 

presentation.” 5 U.S.C. 553(c). Notably, the APA does not contain a requirement to hold public 

hearings. It is squarely within OSMRE’s discretion to decline to either extend the comment 

period or offer public hearings or meetings. Additionally, the Office of the Federal Register 

states that comment periods generally last 30 to 60 days. See Office of the Federal Register, “A 

Guide to the Rulemaking Process,” available at

https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf (last accessed 

August 12, 2020). As discussed above, OSMRE received a diverse set of substantive comments 

from a diverse set of commenters within the 30-day comment period. Based on this and several 

other reasons, regardless of what other agencies have done with regard to extension requests, the 

public had a meaningful opportunity to comment with sufficient time to prepare their comments. 

First, OSMRE’s proposed revisions would not significantly alter OSMRE’s 

implementation of the SMCRA program. As stated in the proposed rule, the proposed changes 

were primarily intended to clarify a potential ambiguity in OSMRE’s existing regulations, 

eliminate duplicative efforts of OSMRE and the State regulatory authorities when responding to 

citizen complaints, and enhance procedures for corrective action of State regulatory program 

issues. See, e.g., 85 FR at 28905, 28910. Previously, OSMRE has addressed these issues through 

guidance documents, such as the memorandum from Director Joseph G. Pizarchik to Regional 

Directors regarding Application of the Ten-Day Notice Process and Federal Enforcement to 

Permitting Issues Under Approved Regulatory Programs, which were issued without any 

opportunity for advance public comment. Memorandum from Director Joseph G. Pizarchik 

(Nov. 15, 2010). By addressing these issues through the APA rulemaking process, OSM has 
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provided the public an opportunity to comment. 

Second, the proposed rule proposed to make only limited changes to the Federal

regulations. The changes OSMRE proposed primarily occurred in three sections—30 CFR 

733.12, 842.11, and 842.12. The other proposed changes were conforming changes. If this rule 

was significant, the Office of Information and Regulatory Affairs (OIRA) in the Office of 

Management and Budget (OMB) would have classified it as such; however, it has not because 

this final rule is not expected to have a $100 million annual impact on the economy, raise novel 

legal issues, or create significant impacts. See “Procedural Determinations” below. 

Third, as stated in section 6(a)(1) of Executive Order (E.O.) 12866, “before issuing a notice 

of proposed rulemaking, each agency should, where appropriate, seek the involvement of those 

who are intended to benefit from and those expected to be burdened by any regulation 

(including, specifically, State, local, and tribal officials).” The State regulatory authorities were 

the parties most likely to be affected if the changes in the proposed rule were finalized. As such, 

before publishing the proposed rule, OSMRE involved the State regulatory authorities by 

seeking their suggestions on what the proposed rule should accomplish. For example, as part of 

a program efficiency work group, OSMRE requested that State regulatory authorities provide 

information about the number of citizen complaints received; the number of TDNs received; 

whether duplication exists between citizen complaints the State regulatory authority receives 

directly from citizens and TDNs received from OSMRE; and the amount of time State regulatory 

authority personnel expend responding to TDNs and citizen complaints that the State regulatory 

authority receives directly from citizens. In addition, OSMRE directly engaged with its State 

regulatory authority partners by requesting input on the development of internal OSMRE 

guidance about TDNs, which, when finalized, were made publicly available on OSMRE’s 
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website at https://www.osmre.gov/lrg/directives.shtm. 

Comment: Although most of the commenters seeking extensions of time or public 

hearings were general in nature, some of the commenters provided specific rationales for 

the requests for extensions of time or public hearings. In most circumstances, these 

specific requests for extensions of time or hearings were prompted by the impacts of the 

COVID-19 pandemic, including the potential for lack of access to the internet due to 

library closures and obligations associated with caring for family members infected with 

COVID-19. Some of these commenters cited other Federal agencies’ decisions to extend 

comment periods because of COVID-19. Other commenters supported an extension of 

the comment period because the 30-day comment period included the Memorial Day 

holiday. Finally, as indicated above, a group of commenters suggested that 30 U.S.C. 

1251(b), through its reference to section 1251(a), requires OSMRE to offer to hold public 

hearings for rulemakings affecting SMCRA’s permanent regulatory program. These 

commenters also opine that holding public hearings has been the standard and expected 

practice.

Response: OSMRE recognizes that the comment period for this rule occurred during the 

COVID-19 pandemic, which may have changed the manner in which people and organizations 

would have traditionally reviewed and submitted comments on the proposed rule. Although it is 

true that the pandemic may have changed operating procedures, it is also true that OIRA 

recognized that “work on behalf of the American people must continue during this period, 

including work on regulations . . . .” See Memorandum from Paul J. Ray, OIRA Administrator 
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(March 23, 2020). OIRA, therefore, declined to issue a “wholesale extension of the comment 

periods of pending notices of proposed rulemakings . . . .” Id. Despite the hardships posed by 

the pandemic and the existence of a Federal holiday within the comment period, OSMRE 

received 93 comments from a representative group of interests. In total, these comments 

presented a thorough examination of the limited number of changes proposed, and the 

commenters did not appear to be hampered by the length of the comment period. 

In addition, OSMRE disagrees with the comment that SMCRA, at 30 U.S.C. 1251(b), 

requires OSMRE to offer to hold public hearings for rulemakings such as this one. On its face, 

section 1251(b) applies to the permanent regulatory program that OSMRE promulgated long 

ago. While OSMRE can still hold public hearings with regard to proposed rules that are 

published after the permanent program regulations were promulgated, it is not required to do so. 

For many of the same reasons a 30-day comment period was adequate, including receipt of a 

diverse set of substantive comments from a diverse set of commenters within the 30-day 

comment period, OSMRE also finds that public hearings were not necessary to inform OSMRE 

of the various issues and viewpoints at play. Instead, as explained above, OSMRE obtained a full 

range of comments from a diverse group of commenters. In sum, OSMRE values public 

participation in its rulemaking efforts and finds that there was reasonable and adequate public 

participation in this particular rulemaking. 

Comment: A few commenters stated that OSMRE should extend the comment period 

beyond 30 days because Federal employees’ teleworking arrangements as a result of the 

COVID-19 pandemic impinged on the commenting process. 
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Response: Despite the challenges posed by the COVID-19 pandemic, OSMRE has been 

diligent in responding to inquiries regarding the proposed rulemaking either via email or 

telephone. As previously stated, OIRA has made clear that “work on behalf of the 

American people must continue during this period, including work on regulations . . . .” 

See Memorandum from Paul J. Ray, OIRA Administrator (March 23, 2020). OSMRE 

did not shut down or stop its work on behalf of the American people as a result of the 

COVID-19 pandemic. As is its customary practice, OSMRE specified the methods for 

submitting comments in the proposed rule. 85 FR at 28904. This included submission of 

comments via regulations.gov or hard copy. The submission of comments on

regulations.gov was not affected by the pandemic, and OSMRE personnel still regularly 

collected the comments that were submitted in hard copy. 

Comment: A few commenters cited the Native American population as being disproportionally 

affected by the COVID-19 pandemic. According to commenters, many of these same population 

centers are located adjacent to coal mine sites, are affected by the coal mine operations, and need 

to voice their comments on the proposed rulemaking. Commenters cited the lack of developed 

information technology infrastructure and widespread COVID-19 illnesses within the Native 

American community as sufficient reasons to extend the comment period. OSMRE appreciates 

the commenters’ focus on, and is sensitive to, the COVID-19 pandemic’s effect on Native 

American populations. 

Response: No Tribe currently has primacy to regulate surface coal mining operations within its 

jurisdiction. Because this rule relates to OSMRE’s enforcement in primacy States, these 
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revisions will have no direct impact on any Tribe. Once a Tribe obtains primacy, that Tribe 

would be in the same position as a State regulatory authority. 30 U.S.C. 1300(j). Therefore, 

OSMRE would consider information from a Tribal regulatory authority, just as OSMRE 

considers information from a State regulatory authority, in determining whether to issue a TDN 

to the Tribal regulatory authority. Despite this final rule not affecting any Tribe directly, OSMRE 

directly engaged with the three Indian Tribes that have either expressed an interest in achieving 

primacy or that have traditionally had surface coal mining operations—the Navajo Nation and 

the Hopi and Crow Tribes. See “Procedural Determinations,” E.O. 13175—Consultation and 

Coordination With Indian Tribal Governments, below. In addition, Tribes were able to comment 

on the proposed rule. To the extent the commenters were concerned about the rule’s effects on 

individual Native Americans, as opposed to Indian Tribes, OSMRE’s final rule will not hamper 

any citizen’s ability to submit a citizen complaint to OSMRE. Thus, any citizen, including a 

Tribal member, can continue to raise concerns to OSMRE about potential SMCRA violations. 

Comment: One commenter cites the ongoing improvements to regulations.gov, one of the 

methods of submitting comments on the proposed rule to OSMRE, as a rationale for 

extending the comment period. 

Response: OSMRE is aware that regulations.gov has been undergoing beta testing since 

July 2019, and it is fully cooperating with the U.S. General Services Administration 

(GSA) in its ongoing efforts to improve the experience of a user while participating in the 

Federal government rulemaking process. Contrary to the commenter’s assertions, the core 

functionality of regulations.gov has not been affected by the beta testing. In fact, the 
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regulations.gov site has merely been updated to be more accessible to the public and 

improve the public interface. GSA has characterized the beta testing and associated 

improvements as efforts to create transparency and expose the public to improvements 

contemplated for the website and to solicit feedback. See Beta Frequently Asked 

Questions available at https://beta.regulations.gov/faq?type=beta (last accessed August 

17, 2020). Moreover, the standard regulations.gov site is still available, and users may 

choose the “classic” version if they prefer. Id. Therefore, the improvement process for 

regulations.gov was not a basis for extending the comment period. 

For all of these reasons, including the limited nature of this rulemaking and the sufficient 

time available to provide meaningful comment, as evidenced by the diverse and thorough 

comments received, neither an extension of time nor public hearings were warranted.

C. This Final Rule is Properly Characterized as a Clarification

In the proposed rule, OSMRE characterized the provisions related to 30 CFR Part 842 as

clarifications because OSMRE primarily sought to remove ambiguity as to what information 

should be considered by the OSMRE authorized representative when formulating reason to 

believe that any person is in violation of any requirement of [SMCRA] or any permit condition 

required by [SMCRA].” 30 U.S.C. 1271(a). Many commenters objected to OSMRE’s use of the 

term clarification to describe the changes to Part 842; however, some industry commenters 

supported this characterization. OSMRE maintains that clarification is an appropriate descriptor. 

As discussed in more detail in specific comment responses below, several citizen group 

commenters alleged that OSMRE invented ambiguity in the existing regulations where none 

existed to justify the regulatory changes. OSMRE strongly disagrees with this assertion. 
21 

Due to the complex nature of SMCRA, and coal mining in general, ambiguity has 

arisen about how OSMRE should perform some of its oversight functions. Through this 

final rulemaking, OSMRE is seeking to end any ambiguity. Notably, over the years, 

OSMRE has had varying interpretations of how to administer 30 U.S.C. 1271(a) and the 

implementing regulations at 30 CFR Part 842. An example of disparate implementation 

of the existing regulations by OSMRE is evidenced by the fact that OSMRE has revised 

its primary Directive on the TDN process, INE-35, eight times in 33 years—an average 

of approximately once every four years – each time without taking prior public comment. 

Tellingly, the various interpretations documented within OSMRE policy have the 

common theme of attempting to define the right balance of expertise and professional 

discretion and due diligence. With this final rulemaking, OSMRE has achieved better

balance. In proposing this rule, OSMRE closely examined the concepts of expertise and 

professional discretion and due diligence in its enforcement of SMCRA. For example, 

when considering an early draft of SMCRA, the House of Representatives recognized the 

importance of formulating “reasonable belief” based on available information. 

When the Secretary receives information from any source that would give 

rise to a reasonable belief that the standards of the Act are being violated, 

the Secretary must respond by either ordering an inspection by Federal 

inspectors during the interim period or, after the interim, notice to the 

States in the follow-up inspection that the State’s response is inadequate. 

It is anticipated that “reasonable belief” could be established by a snapshot 

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

a violation.

H.R. REP. NO. 93-1072, at 11 (May 20, 1974). 

If OSMRE simply passes along a citizen complaint without considering available 

information, it is not establishing the requisite reasonable belief that was Congress’ 

intent. Congress recognized the value of relying on the professional competence and 
22 

capacity of OSMRE staff to ensure effective and efficient processing of citizen 

complaints. In fact, the Senate Report recognized the importance of OSMRE experts in 

achieving the twin goals of efficiency and effectiveness for State enforcement programs: 

Efficient enforcement is central to the success for the surface mining 

control program contemplated by S.7. For a number of predictable 

reasons—including insufficient funding and the tendency for State 

agencies to be protective of local industry—State enforcement has in the 

past often fallen short of the vigor necessary to assure adequate protection 

of the environment. The Committee believes, however, that the 

implementation of minimal Federal standards, the availability of Federal 

funds, and the assistance of the experts in the Office of Surface Mining 

Reclamation and Enforcement in the Department of Interior, will combine 

to greatly increase the effectiveness of State enforcement programs 

operating under the Act. While it is confident that the delegation of 

primary regulatory authority to the States will result in adequate State 

enforcement, the Committee is also of the belief that a limited Federal 

oversight role as well as increased opportunity for citizens to participate in 

the enforcement program are necessary to assure that the old patterns of 

minimal enforcement are not repeated.

S. REP. NO. 95-128, at 90 (May 10, 1977). These factors have weighed heavily in

OSMRE’s analysis and the formulation of this final rule. In order to achieve an effective 

balance of these concepts, OSMRE has always focused on the mandates of SMCRA, 

including expeditious enforcement. In the final rule, OSMRE’s clarifications act to 

resolve the internal struggle to exercise expertise and professional judgment and due 

diligence to best implement the existing regulations at 30 CFR Part 842, despite the 

potential ambiguities contained within those regulations. Strategies employed in versions 

of the INE-35 Directive have included various interpretations of the “reason to believe” 

standard, what constitutes appropriate action, and how to address various types of 

violations. The regulations that OSMRE is finalizing today aim to remove the potential 

ambiguity related to the “reason to believe” standard that made those various 
23 

interpretations possible. OSMRE’s final rule is crafted to create a more uniform, 

efficient, and transparent process for resolving citizen complaints. These changes do not 

diminish the public’s access to enforcement or reinvent the TDN process. 

In response to a commenter’s suggestion that OSMRE should provide objective 

support for this rule, including data, OSMRE notes that it proposed this rulemaking to

clarify issues raised by State regulatory authorities and identified by OSMRE’s own

experience. Additionally, a goal of the proposed rulemaking is to ensure OSMRE

uniformly applies the statute and regulations and no disparate application occurs within

the agency. Recognizing that there may have been inconsistent application of the existing

regulations, analysis of past data is not germane to the rulemaking as the commenter

suggests. For example, if various OSMRE authorized representatives applied the existing

regulatory language inconsistently, relying on data related to the number of citizen

complaints that led to the issuance of TDNs would not illustrate how those authorized

representatives might have interpreted the existing regulations in formulating “reason to

believe”. Because ensuring that information from the State regulatory authority is

considered when formulating “reason to believe” is a major component of this final rule, 

revisiting individual TDN analyses under previous interpretations of the existing

regulations or internal OSMRE policies is not useful or informative. 

OSMRE’s clarifications harmonize the implementing regulations with 

congressional intent. These improvements were needed because one possible 

interpretation of 30 CFR 842.11(b)(2) was that OSMRE’s authorized representative was

required to find that reason to believe that a violation exists whenever any information 

submitted to OSMRE would, if true, constitute a violation. Under this possible 
24 

interpretation, OSMRE would merely serve as a conduit to the State regulatory authority, 

eviscerating the authority bestowed upon OSMRE by Congress to act with “professional 

competence and capacity to administer the provisions of [SMCRA].” 30 U.S.C. 1211(a). 

In practice, if this interpretation were implemented, OSMRE would almost always be 

required to immediately issue a TDN to the State regulatory authority. This interpretation 

removes any aspect of an OSMRE authorized representative’s discretion and prevents the 

authorized representative from exercising best professional judgment. OSMRE’s 

clarification reduces ambiguity in the regulations that could lead to this unwarranted

interpretation. Instead, the final rule makes clear that OSMRE’s authorized 

representative, a qualified, trained, professional with SMCRA expertise, is in the best 

position to consider all readily available information available to him or her before 

making a determination about whether there is reason to believe a violation exists before 

deciding whether to issue a TDN. Instead of simply accepting what is submitted to 

OSMRE as true, under this final rule, OSMRE’s authorized representative can review all 

readily available information, regardless of the source of that information. This change 

also better aligns the Federal regulations with the carefully crafted language of 30 U.S.C. 

1271(a), and, as explained below, reduces duplication of effort between OSMRE and a 

State regulatory authority as mandated by 30 U.S.C. 1211(c)(12). 

The ambiguity in the regulations was leading to inconsistent interpretations of the “reason 

to believe” standard in the regulations. As discussed more thoroughly below, the comments to 

the proposed rule illustrate the inconsistent interpretations that existed within OSMRE and 

among the State regulatory authorities, citizens, and industry. Some have interpreted the 

regulatory standard in a way that would make OSMRE a mere conduit of citizen complaints to 
25 

the State regulatory authority while others interpreted the regulatory “reason to believe” standard 

to evoke more discretion, in the form of OSMRE’s authorized representative exercising 

professional judgment. Additionally, there have been varying views about the type of 

information that OSMRE’s authorized representative should consider and from whom that 

information originates, with some groups claiming that OSMRE should only consider citizen 

information while others found it essential that OSMRE also consider information provided by 

the State regulatory authority—the primary SMCRA enforcement authority under approved State 

programs. This inconsistency has manifested itself in the various internal directives that OSMRE 

has issued throughout the years, which have contained various interpretations of the regulations 

regarding, among other things, what information should be considered when determining if the 

OSMRE authorized representative has a “reason to believe.” 

With the assistance and comments of OSMRE’s State regulatory authority partners, 

citizens, and industry, OSMRE identified these inconsistent interpretations as significant enough 

to warrant a resolution through a clarifying rulemaking. 

Comment: A commenter expressed concern that the current TDN process was not 

working and gave an example of a TDN that seemingly took many years to resolve. The 

commenter further opined that the proposed rulemaking was not a step in the right 

direction and will result in “protracted delays” of enforcement to correct on-the-ground 

issues. 

Response: OSMRE agrees with the commenter that the existing process needed to be clarified to 

avoid unnecessary delays, and that is one of the reasons why OSMRE is issuing this final rule. 
26 

OSMRE notes that this final rule will improve the TDN process by, among other things, 

increasing collaboration and coordination between OSMRE and the State regulatory authorities. 

OSMRE acknowledges that, historically, there have been challenges associated with the TDN 

process, and sometimes TDN issues were not resolved as quickly as OSMRE would have liked. 

However, while this final rule will not eliminate all future delays in TDN outcomes, just as the 

existing regulations did not, this final rule is intended to enhance the overall efficiency of the 

TDN process going forward in addressing violations. Because State regulatory program issues 

will be more appropriately addressed through the enhanced Part 733 process, rather than through 

the TDN process, OSMRE and the State regulatory authorities will be able to focus more quickly 

on site-specific violations that arise. 

To be clear, neither the proposed rule nor the final rule substantively impacts the TDN 

process. Instead, in the final rule, OSMRE removes ambiguity by clarifying that the OSMRE

authorized representative can review information received from any source, including the State 

regulatory authority, when deciding whether he or she has reason to believe a violation exists as 

contemplated by SMCRA. 30 U.S.C. 1271(a). When an OSMRE authorized representative has 

reason to believe a violation exists, the information about the alleged violation will continue to 

be transmitted to the State regulatory authority via a TDN. The distinction between the existing 

regulations and the final rule is that, under the final rule, the OSMRE authorized representative 

will consider all readily available information when formulating reason to believe. Most 

importantly, all readily available information includes information that the OSMRE authorized 

representative may receive from the State regulatory authority. 

OSMRE also notes that some of the other revisions that OSMRE proposed and is 

finalizing today, namely the enhancement to 30 CFR Part 733 related to State regulatory 
27 

authority action plans to address State regulatory program issues, are a variation of an 

administrative process that has been contained in OSMRE’s Directives REG-8 and REG-23 

since as early as 1988. Given OSMRE’s longstanding use of these action plans, the changes to 

these regulations also are not a material alteration of the administrative process that OSMRE has 

already used to interact with State regulatory authorities to enforce SMCRA. OSMRE is 

codifying these practices to avoid ambiguity about when these State regulatory authority 

corrective action plans are appropriate to use. 

In summary, Merriam-Webster Dictionary defines clarify as, “to make understandable; to 

free from confusion.” See Clarification, Merriam Webster Online Dictionary, available at 

merriam-webster.com/dictionary/clarification (last accessed August 14, 2020). Because of the 

varying interpretations of what information may be considered when formulating reason to 

believe, not only by SMCRA stakeholders, but by OSMRE itself, a clarification is certainly 

warranted. Moreover, codifying the enhancements to early identification of corrective action to 

address State regulatory program issues will remove ambiguity as to when this process should be 

applied. OSMRE finds it essential to be transparent and make the regulations “understandable” 

and “free from confusion” so that the TDN process pursuant to 30 U.S.C. 1271(a) and the 

enhanced 30 CFR Part 733 process pursuant to 30 U.S.C. 1271(b) work efficiently and 

effectively. This clarification is necessary to remove ambiguity. 

D. This Final Rule Neither Inhibits a Citizen’s Ability to Report Violations to

OSMRE Nor Limits OSMRE’s Ability to Exercise Oversight Enforcement

OSMRE received comments that evidence a misconception by many commenters that the 

changes OSMRE proposed, if finalized, would alter the obligations of 30 U.S.C. 1271. As 

discussed below, in response to specific comments, the statutory obligations under SMCRA are 
28 

not altered by this rulemaking, and OSMRE will continue to take action on citizen complaints 

and engage in oversight enforcement consistent with statutory mandates and the Federal

regulations. 

Comment: Many commenters, including citizen group commenters, suggested that the proposed 

rule clarification would eliminate the ability of the public to report violations directly to 

OSMRE. According to several commenters, the proposed clarification would alter the process 

citizens would use to report alleged violations, make it prohibitively difficult, impair 

enforcement, and would lengthen the amount of time for a State regulatory authority to respond 

to a TDN from 10 days to unlimited, and make a TDN response from the State regulatory 

authority discretionary instead of mandatory. A commenter also opined that the clarification of 

the TDN process that OSMRE proposed explicitly contradicts the letter and intent of SMCRA. 

Similarly, another commenter suggested that, under the proposal, OSMRE would be able to 

simply ignore complaints against mining companies. 

Response: OSMRE disagrees with the premise of these comments. The rule, as proposed 

and finalized today, does not materially alter the manner in which OSMRE already 

enforces SMCRA. Specifically, OSMRE disagrees with the commenters who suggested 

that the proposed provisions and clarifications in 30 CFR Parts 733 and 842 would 

impair, weaken, or eliminate the ability of the public to report violations directly to 

OSMRE. To the contrary, the public will be able to continue to report possible violations 

directly to OSMRE, and OSMRE will continue to take such complaints seriously and 

issue a TDN to the State regulatory authority when appropriate. OSMRE’s consideration 

of all readily available information before issuing a TDN will make the process more 
29 

efficient and effective by making correction of the violation the objective. 

Indeed, the purpose of this final rule is to ensure that both alleged violations and 

potential State regulatory program issues are corrected promptly and effectively. After working 

closely with State regulatory authority partners for over 40 years, OSMRE has learned that, 

within the cooperative federalism framework established by SMCRA, effective enforcement 

requires close cooperation with primacy states. Furthermore, OSMRE notes that the United 

States Supreme Court has recognized that SMCRA has established a system of cooperative 

federalism involving an essential relationship between OSMRE in an oversight capacity and 

State regulatory authorities. In Hodel v. Va. Surface Mining and Reclamation Ass’n, 452 U.S. 

264, 289 (1981) (citing In re Permanent Surface Min. Regulation Litigation, 617 F.2d 807, 808 

(1980)), the Supreme Court explained that SMCRA “established a program of cooperative 

federalism that allows the States, within limits established by federal minimum standards, to 

enact and administer their own regulatory programs, structured to meet their own particular 

needs.” Given the unique nature of cooperative federalism embodied in SMCRA, coupled with 

the specific requirements within SMCRA to consider “any information available” when 

formulating reason to believe in the TDN context, it makes sense for OSMRE to consider 

available information from the State regulatory authority. 30 U.S.C. 1271(a)(1). 

OSMRE’s clarification in the final rule to provide explicitly that OSMRE will consider 

all “readily available information,” including any information that a State regulatory authority 

provides, promotes the goal of ensuring that the entities with primary jurisdiction over 

respective State programs supply OSMRE with information essential to its assessment of 

alleged violations. After OSMRE considers readily available information, including any 

information that a State regulatory authority provides, OSMRE will continue to make an
30 

independent assessment regarding whether it has reason to believe a possible violation exists. 

Further, the basic principle of SMCRA and the implementing regulations at 30 CFR 842.11 

remains unchanged – OSMRE will continue to issue a TDN to a State regulatory authority when 

it concludes there is reason to believe a violation exists. As OSMRE explained in the proposed 

rule, and as embodied in this final rule, any information that OSMRE considers must be 

“readily” available to ensure that the process proceeds as quickly as possible and does not 

become open-ended. 

The existing regulations at 30 CFR 842.12(a) already require that, if a citizen 

requests a Federal inspection, then the citizen is required to notify a State regulatory 

authority of a possible violation before or simultaneously with notification to OSMRE. In 

fact, OSMRE’s proposal, and ultimately this final rule, is fundamentally no different 

from the existing rule because it retains language that requires citizens to notify the State 

regulatory authority prior to, or simultaneously with, reporting violations to OSMRE. The 

language in existing 30 CFR 842.12(a) requires citizens, as part of a request for Federal 

inspection, to do several things, including furnishing OSMRE with:

a signed, written statement ... giving the authorized representative reason 

to believe that a violation, condition or practice referred to in § 

842.11(b)(1)(i) exists and that the State regulatory authority, if any, has 

been notified.... 

Moreover, contrary to some commenters’ assertions that this proposed rule clarification 

would institute a new requirement for citizen complainants to contact the State regulatory 

authority before requesting a Federal inspection under section 842.12, the requirement for 

citizens to contact the State regulatory authority, before or simultaneously with a request 

to OSMRE for a Federal inspection, has been in 30 CFR 842.12(a) since August 16, 
31 

1982. 47 FR 35620. Because OSMRE continues to believe, as OSMRE has since 1982, 

that most alleged violations will be resolved by a State regulatory authority without 

intrusion by OSMRE (47 FR at 35628), OSMRE strongly encourages a citizen also to 

report a violation to the State regulatory authority first. However, neither the proposed 

rule nor the final rule mandates that a citizen report an alleged violation to the State 

regulatory authority before reporting it to OSMRE. The proposed rule clarification, 

which is adopted in this final rule, does not change or alter the requirement for citizen 

complainants to contact the State regulatory authority before or simultaneously with 

requesting a Federal inspection from OSMRE. 

SMCRA confers exclusive jurisdiction upon a State regulatory authority after that 

State has achieved primacy. See Bragg v. W. Va. Coal Ass’n, 248 F.3d 275, 288 (4th Cir. 

2001) (explaining that once a State achieves primacy, it has “‘exclusive jurisdiction over 

the regulation of surface coal mining’ within its borders”) (citing 30 U.S.C. 1253(a)). 

However, a State’s exclusive jurisdiction is subject to the statutory exceptions outlined in 

SMCRA sections 521 and 523 and Title IV of SMCRA, 30 U.S.C. 1271, 1273, and 1231-

1244. Given the prominent role that the States play in administering and enforcing 

SMCRA, OSMRE has found, in its experience, that including a State regulatory authority 

early in the process is advantageous to both the State regulatory authority and OSMRE 

because it reduces duplicative efforts to address potential violations. In OSMRE’s 

experience, when a citizen first contacts the State regulatory authority, violations are 

often promptly and effectively resolved without OSMRE’s direct involvement. 

In OSMRE’s experience implementing SMCRA, it has witnessed instances when 

citizens filed complaints for the same or similar alleged violations on the same permit with both 
32 

the State regulatory authority and OSMRE. Resolution of the violation was not efficient or 

effective because the State regulatory authority was simultaneously trying to use the same 

resources to respond to the citizen complaints and the various TDNs issued by OSMRE. For 

example, in one instance, OSMRE issued six TDNs on the same permit in less than six months. 

Instead of focusing directly on correcting the alleged violations at the site, both OSMRE and the 

State regulatory authority were subsumed by the paperwork exercise of issuing TDNs, 

responding to TDNs, and evaluating the State’s responses to the TDNs; correcting the alleged 

violations became secondary to following the TDN process. Specifically, under one 

interpretation of the “reason to believe” standard in the existing regulations, the OSMRE 

authorized representative considered information in OSMRE’s possession but ultimately issued 

separate TDNs, automatically assuming the allegations in the complaints to be true and without 

considering all readily available information—most importantly, the information that the State 

regulatory authority, with primary regulatory authority over the mine site, had available. 

Because the State regulatory authority knows its specific permits best, this is a perfect example 

of why considering any information the State regulatory authority provides is essential. In the 

anecdote above, had the State regulatory authority provided all “readily available information” 

to OSMRE up front, both OSMRE and the State regulatory authority could have better 

understood the alleged violations, cooperated effectively, and spent valuable time and resources 

addressing the alleged violations and not simply generating duplicative paperwork. Tellingly, in 

this example, the OSMRE field office ultimately found no violations of the approved program. 

The citizens filed a request for informal review with an OSMRE regional director, and, 

ultimately, the regional director affirmed the OSMRE field office’s original decision. This 

duplication of effort unnecessarily diminished OSMRE and State regulatory authority resources 
33 

that could have better been directed to resolving real issues, not merely preparing and 

exchanging paperwork. Thus, under this final rule, OSMRE must consider all readily available 

information, including any information the State regulatory may provide, when the authorized 

representative determines whether there is reason to believe that a violation exists. 

As noted above, the removal of the language that essentially required OSMRE to 

automatically accept citizen complaints as true removes a potential ambiguity in the existing 

regulations and clarifies the information OSMRE can consider in forming a “reason to believe.” 

Finalizing the rule in this manner does not hinder the ability of citizens to report a violation 

directly to OSMRE. Because the regulations continue to require that the citizen notify the State 

regulatory authority before or simultaneously with requesting that OSMRE initiate a Federal 

inspection, a primacy State will have an opportunity to address an alleged violation before 

OSMRE, which is advantageous because the State regulatory authorities are more familiar with 

the operations in their States and can typically respond to alleged violations faster than OSMRE. 

This is consistent with primacy, as described by a U.S. Court of Appeals: 

the Secretary is initially to decide whether the proposed state program is 

capable of carrying out the provisions of the Act but is not directly involved 

in local decision making after the program has been approved. 

In re Permanent Surface Min. Regulation Litigation, 653 F.2d 514, 518 (D.C. Cir. 1981). The 

court further stated that: 

[o]nce a state program has been approved, the state regulatory agency plays

the major role, with its greater manpower and familiarity with local

conditions. It exercises front-line supervision, and the Secretary will not

intervene unless its discretion is abused.

Id. at 523. Although a State plays the major role in enforcing its State program, the court did note 

that: “Ultimate responsibility for guaranteeing effective state enforcement of uniform nationwide 
34 

minimum standards lies with the Secretary.” Id. States are expected to fully implement their 

programs, including all applicable enforcement provisions. OSMRE will exercise its oversight 

responsibility, in part, through this final rule and will continue to issue TDNs when it has reason 

to believe a possible violation exists; the relevant provisions of this final rule clarify the process 

that OSMRE will use to arrive at a “reason to believe.” Further, if a State does not effectively 

enforce its State program, Congress authorized OSMRE to address such inadequacies in the 

State’s implementation through SMCRA section 521(b). 30 U.S.C. 1271(b). 

Some commenters asserted that the time frames for responding to TDNs have 

been extended or made indefinite by the proposed rule. While it is true that there is no 

time frame set forth in the final rule for OSMRE’s authorized representative to make a 

determination about whether they have reason to believe a violation exists, it is also true 

that there has never been a stringent time frame imposed. Further, as OSMRE explained 

in the proposed rule, OSMRE proposed, and is finalizing, inclusion of the word “readily” 

to the revised regulations at 30 CFR 842.11(b)(1)(i) to modify the phrase “available 

information” to ensure that the process proceeds as quickly as possible and does not 

become open-ended. 85 FR at 28907; see also OSMRE’s response to a request to 

specifically define “readily available.” Once OSMRE’s authorized representative has 

determined that they have reason to believe that a possible violation exists, the State 

regulatory authority will still have only ten days to respond to the TDN. See 30 CFR 

842.11(b)(1)(ii)(B)(1). Thus, this rule ensures that reported alleged violations will be 

responded to in a reasonable amount of time.

Finally, this rule neither makes a State regulatory authority’s response to a TDN 

discretionary nor impinges on OSMRE’s ability to perform oversight of a State 
35 

regulatory program. OSMRE is not changing the nondiscretionary requirement that a 

State regulatory authority must respond to a TDN with good cause for inaction or by 

taking appropriate action within ten days. 30 CFR 842.11(b)(1)(ii)(B)(1). OSMRE is, 

however, revising its regulations to ensure a more uniform and efficient process when 

OSMRE receives a citizen complaint. The revised regulation clarifies what the OSMRE 

authorized representative should consider when they receive a citizen complaint, which 

eliminates the possibility that different OSMRE offices will apply different standards 

when determining whether to issue a TDN. This revised process also ensures that the 

OSMRE authorized representative who receives a citizen complaint is able to apply their 

independent, professional judgment to determine whether they have reason to believe a 

possible violation exists based on all readily available information before them. Once an 

OSMRE authorized representative determines that they have “reason to believe,” they 

must issue a TDN to the State regulatory authority. See 30 CFR 842.11(b)(1). Therefore, 

OSMRE’s oversight of alleged violations is not materially altered.

Comment: Very similar to the comment addressed above, a citizens’ group commenter 

expressed the opinion that the rule gives the coal industry a free pass to break 

environmental laws and provides no meaningful way for citizens to bring potential 

violations to the attention of OSMRE. As evidence for this claim, the commenter 

references a statement by OSMRE in regard to the spirit of cooperative federalism, at 85 

FR at 28905 in the preamble of the proposed rule, “to alleviate unnecessary regulatory 

burden” consistent with E.O. 13777. 
36 

Response: This rulemaking does not, and could not, alter OSMRE’s statutory 

responsibilities to enforce SMCRA. Moreover, this rulemaking does not impair, weaken, 

or eliminate OSMRE’s ability to enforce SMCRA and the implementing regulations or 

the public’s ability to report alleged violations directly to OSMRE. See also OSMRE’s 

further explanations in this section. 

To the extent that OSMRE referred to the spirit of cooperative federalism in the 

preamble, it was a recognition of the fundamental importance of cooperative federalism 

to SMCRA’s administrative and enforcement framework. See, e.g., Bragg, 248 F.3d at

288 (SMCRA “accomplishes [its] purposes through [] ‘cooperative federalism,’ in which 

responsibility for the regulation of surface coal mining in the United States is shared 

between the U.S. Secretary of the Interior and State regulatory authorities.”). It was in 

this spirit that we coordinated with our State regulatory partners as we conceptualized 

this rulemaking. This spirit also informed how we chose to clarify any potential 

ambiguities in the existing regulations and develop a more efficient process for 

addressing alleged violations of SMCRA within the limits of our statutory authority. 

Cooperative federalism does not mean that OSMRE will no longer perform its statutory 

duty to oversee a State regulatory authority’s implementation, administration, 

enforcement, and maintenance of its State program. Instead, it means that, given the 

prominent role that the States play in administering and enforcing SMCRA, including 

State regulatory authorities early in the process is advantageous to both the State 

regulatory authority and OSMRE because it reduces duplicative efforts to address 

potential violations. Also, as stated above, in OSMRE’s experience, when a citizen first 
37 

contacts the State regulatory authority, violations are often promptly and effectively 

resolved without OSMRE’s direct involvement. 

Likewise, the fact that this action is consistent with E.O. 13777 and helps to 

alleviate unnecessary regulatory burdens does not mean that OSMRE will fail to perform 

its statutory responsibilities set forth in SMCRA—including its oversight responsibilities. 

It simply means that by removing a potential ambiguity from the Federal regulations and 

creating a more uniform process for OSMRE authorized representatives to follow when 

determining whether they have “reason to believe,” OSMRE is reducing the likelihood of 

duplicative processes between OSMRE and the State regulatory authorities. It does not 

mean that permittees will be held to a lesser standard for abating SMCRA violations 

when they occur. 

Comment: In the same vein, a citizen commenter states that United States citizens and 

taxpayers have a right to seek accountability for violations of mining laws that protect 

citizens and the environment. As a rationale for not finalizing the proposed rule, the 

commenter also cites to a State constitution and asserts that there is a provision that is 

aimed at protecting citizens’ rights to a “clean and healthful environment.” 

Response: Nothing in this final rule diminishes a citizen’s ability to bring potential 

violations of SMCRA or State counterparts to SMCRA to OSMRE’s attention. Further, 

when OSMRE has reason to believe that a violation exists, OSMRE will continue to send 

a TDN to the relevant State regulatory authority and take appropriate enforcement action. 

This final rule is fully authorized by SMCRA. In order for a State to be granted primacy 
38 

of an approved SMCRA State program, the State must follow the procedures of section 

503 of SMCRA, 30 U.S.C. 1253; however, “[n]o State law or regulation...shall be 

superseded by any provision of [SMCRA] or any regulation issued pursuant thereto, 

except insofar as such State law or regulation is inconsistent with the provisions of 

[SMCRA],” and State laws and regulations may be more stringent than SMCRA and its 

implementing regulations. See 30 U.S.C. 1255. Therefore, nothing in SMCRA prevents 

any State from adopting laws and regulations related to surface coal mining operations 

that are more stringent than SMCRA or its implementing regulations, including this final 

rule. Moreover, this final rule is consistent with SMCRA’s purpose of protecting society 

and the environment from the adverse effect of surface coal mining operations, which is 

similar to the State constitutional provision cited by the commenter.

Comment: A citizen commenter expressed concern that OSMRE’s proposed rule, if 

finalized, would reduce the efficacy of OSMRE’s oversight of approved State programs. 

Similarly, another commenter opined that the proposed rule, if finalized, would reduce or 

hinder OSMRE’s ability to conduct oversight of State regulatory programs. 

Response: OSMRE disagrees with these commenters’ characterization of the impacts of 

the regulatory clarification that OSMRE proposed and is finalizing today. As explained in 

response to other comments within this section, OSMRE drafted the regulatory revisions 

to improve the efficiency and effectiveness of OSMRE’s oversight by focusing State and 

OSMRE resources on addressing alleged violations and not on simply generating 

paperwork. Nothing in the final rule prevents OSMRE from exercising the full panoply of 
39 

oversight actions that Congress authorized in SMCRA. To the contrary, OSMRE’s 

regulatory revisions seek to build on the oversight responsibilities at 30 U.S.C. 1254(b) 

and 1271(b), which authorize OSMRE to provide Federal enforcement when a State is 

not enforcing all or part of its approved program or to take over all or part of a State 

regulatory program if the State regulatory authority fails to enforce the approved State 

program. Specifically, OSMRE is adding the concept of action plans to 30 CFR 733.12, 

which enhances the tools available to OSMRE to ensure the approved State program 

continues to be effectively implemented, maintained, enforced, and administered. This 

addition will codify an existing OSMRE practice and result in more accurate and concise 

solutions to State regulatory program issues. 

Comment: One citizen commenter expressed concerns that SMCRA does not intend the citizen

complaint process to be so complicated that it would impair citizens’ access to filing complaints 

or inhibit citizens from filing complaints. This citizen was particularly concerned that the 

clarification as proposed would make the filing of a citizen complaint more difficult for those 

who are not experts in SMCRA and SMCRA procedures. For example, the citizen alleges that, as 

proposed, the clarification would be similar to a legal filing instead of an informational filing as 

SMCRA intended. Similarly, another citizen commenter expressed concern that the proposed 

requirement to specify the basis for the person’s assertion that the State regulatory authority has 

not taken action with respect to the possible violation is too burdensome upon the public and will 

reduce the number of Federal inspections. 
40 

Response: OSMRE disagrees with the commenters’ views; the clarification adopted in this final 

rule has very little practical effect on how citizens may file complaints and places no additional 

burden on the citizen complaint process from a complainant’s perspective. The majority of the 

proposal finalized today only affects OSMRE’s process after receipt of a citizen complaint. For a 

citizen, the finalized regulation at 30 CFR 842.12(a) reconfirms the requirement in existing 30 

CFR 842.12(a) that, when requesting a Federal inspection, the citizen must include a statement 

that the citizen has informed the State regulatory authority of the existence of the possible 

violation, condition, or practice. As proposed, the final rule will also require the citizen to 

provide the basis for the citizen’s assertion that the State regulatory authority has not taken 

action with respect to the possible violation. OSMRE finds this necessary because any 

information the citizen can provide to OSMRE about the State regulatory authority’s response 

would be very helpful in OSMRE’s efforts to efficiently resolve the alleged violation. OSMRE is 

not suggesting that a citizen complainant enter a mine to verify whether or not the State 

regulatory authority has acted on the possible violation. To the contrary, OSMRE asks citizens 

not to do so and is merely asking the requester of the Federal inspection to provide any 

information he or she may have about the State regulatory authority’s action or inaction. By no 

means is this requirement aimed at reducing requests for Federal inspections; it is intended to 

ensure that OSMRE has all readily available information.

Furthermore, OSMRE does not expect a citizen to provide the level of information that 

would be required for a legal filing. For instance, just as in the existing regulations, under the 

final regulation at 30 CFR 842.12(a), OSMRE specifies that an oral report is sufficient for 

submitting a citizen complaint that requests a Federal inspection as long as it is followed up by a 

written statement. Of course, the more detail that a citizen can provide to OSMRE, the more 
41 

information the authorized representative will have when he or she determines whether there is 

reason to believe there is a violation, which could expedite the correction of any violation that 

the citizen complaint brings to OSMRE’s attention. However, OSMRE recognizes that obtaining 

significant information is frequently beyond most citizens’ ability, and the final rule does not 

require any more information than the citizen has available, such as information explaining why 

the citizen believes there is a violation, that the State regulatory authority was notified, and, 

possibly, the State regulatory authority’s response. 

Comment: One commenter interpreted OSMRE’s preamble statement at 85 FR at 28910 

that “OSMRE should never be acting as a mere conduit for transmitting a citizen 

complaint to a State regulatory authority in the form of a TDN” to mean that OSMRE’s 

proposed rule would eliminate the ability of a citizen to seek Federal relief. 

Response: As explained in the response immediately above, citizens can still avail 

themselves of the citizen complaint process set forth in 30 U.S.C. 1267(h)(1). This rule 

does not materially alter the ability of a citizen to contact OSMRE about an alleged 

violation. OSMRE included the language quoted by the commenter in the preamble of the 

proposed rule because 30 U.S.C. 1271(a)(1) requires OSMRE’s authorized representative 

to use their discretion to make an independent, professional judgment based on all readily 

available information, including information provided by a citizen, to determine if they 

have reason to believe a violation exists before issuing a TDN. In other words, OSMRE 

has the discretion to determine whether it has reason to believe a violation exists. See, 

e.g., Castle Mountain Coal. v. OSMRE, No. 3:15-CV-00043, 2016 WL 3688424, at *6
42 

(D. Alaska July 7, 2016) (30 U.S.C. 1271(a)(1) “does not assign any non-discretionary 

duties to the agency unless and until the Secretary has found ‘reason to believe’ that a 

violation exists.”). Once OSMRE determines it has reason to believe a violation exists, 

the final rule still recognizes that OSMRE has a mandatory duty to issue a TDN to a State 

regulatory authority. 

This comment, in fact, highlights one of the reasons that OSMRE is revising its 

regulations—to clarify a potential ambiguity in its existing regulations. This commenter 

appears to interpret OSMRE’s existing ambiguous regulations as requiring OSMRE to 

automatically issue a TDN every time it receives a citizen complaint. To the extent that 

this is the case, the commenter is not alone. The ambiguity in the existing regulations has, 

in some instances, created the impression that the existing regulation at 30 CFR 842.12(a) 

means that OSMRE will be merely serving as a conduit for a citizen complaint, i.e., 

automatically issuing a TDN anytime it receives a citizen complaint. See, e.g., W. Va. 

Highlands Conservancy, 152 IBLA 158, 187 (Apr. 25, 2000) (When examining the 

existing regulations, the IBLA stated: “[W]e agree with appellants that the regulations do 

not envision ‘fact-finding’ to determine if a violation exists before deciding whether a 

‘possible’ violation may exist. Rather, the preamble language to the 1982 rule makes 

clear that the possibility of a violation triggers the regulatory requirements to notify the 

State.” (emphasis added)). To the extent that our existing regulations were interpreted, by 

the Interior Board of Land Appeals and others, to mandate a TDN on receipt of every 

citizen complaint, that interpretation is in clear contrast with the language of 30 U.S.C. 

1271(a)(1), which requires an OSMRE authorized representative to use his or her 

discretion to determine whether there is “reason to believe” before issuing a TDN. 
43 

Therefore, the revised regulations seek to eliminate any possible ambiguity—it is now 

clear, consistent with the plain language of 30 U.S.C. 1271(a)(1), that the OSMRE 

authorized representative has discretion to determine whether to issue a TDN based on 

whether they have “reason to believe” based on all readily available information. Any 

other interpretation would change OSMRE’s role from an independent, professional 

expert on mining to that of a clerical worker without the discretion to discern facts 

underlying a complaint and that is not contemplated by SMCRA. 

Comment: A commenter, providing input on behalf of a citizens’ group, expressed concern that 

the proposed changes to OSMRE’s regulations would undermine OSMRE’s ability to perform its 

oversight role and prevent public participation in the process. The commenter stressed the 

importance of OSMRE’s ability to hold mine operators accountable in addition to what the States 

do to protect the public and the environment. 

Response: OSMRE appreciates the commenter’s recognition of the important role that OSMRE 

plays in ensuring public safety and environmental protection. However, in a primacy State, 

OSMRE is secondary to the State regulatory authority. Section 503(a) of SMCRA specifies that 

in a primacy State, the State has “exclusive jurisdiction over the regulation of surface coal 

mining and reclamation operations, except as provided in sections 521 and 523 and title IV” of 

SMCRA. 30 U.S.C. 1253(a). Thus, in a primacy State, OSMRE’s role is limited to those 

functions specified in sections 521 and 523 and Title IV (30 U.S.C. 1271, 1273, and 1231-1244). 

Most relevant to this rulemaking, section 521 sets forth the circumstances in which OSMRE may 

exercise its oversight enforcement authority in a primacy State. This authority operates to better 

assure that the goals of SMCRA are met. 
44 

Although OSMRE’s enforcement authority in a primacy State is limited to that 

authorized by 30 U.S.C. 1271, OSMRE disagrees that the rule, as proposed, would further limit 

OSMRE’s ability to enforce SMCRA and to protect the public and the environment. OSMRE 

also disagrees that the proposed rule would, in any way, prevent public participation. Public 

participation is an important tenet of SMCRA. As the U.S. Court of Appeals for the Fourth 

Circuit stated:

SMCRA is designed in part to “assure that appropriate procedures are 

provided for the public participation in the development, revision, and 

enforcement of regulations, standards, reclamation plans, or programs 

established by the Secretary or any State under [the Act].” [30 U.S.C.] 

1202(i). One of the “appropriate procedures” to assure public participation 

in enforcing SMCRA standards allows any adversely affected person to 

notify OSM[RE] of the existence of a SMCRA violation at any surface 

mining operation. Id. § 1267(h). The notification is commonly known as a 

“citizen complaint.”

W. Va. Highlands Conservancy, Inc. v. Norton, 343 F.3d 239, 242 (4th Cir. 2003).

The final rule does not change the public’s ability to submit a citizen complaint. A citizen 

may still submit a complaint to OSMRE just as he or she has been able to do for more than 40 

years. 

The final rule clarifies OSMRE’s process after receipt of a citizen complaint. Specifically, it 

provides that OSMRE will verify the requirement that has been in our regulations since 1982 

that, in a primacy State, a citizen, when requesting a Federal inspection, must notify the State 

regulatory authority of an alleged violation before or simultaneously with notification to 

OSMRE. 47 FR at 35620. Also, as described in response to comments about OSMRE’s 

clarification that when formulating a decision about whether there is “reason to believe,” “any 

information readily available” includes information received from the State regulatory authority, 

OSMRE is also removing the potential ambiguity in the existing regulations about the 
45 

information that OSMRE’s authorized representative will review before determining whether he 

or she has reason to believe a violation exists. These clarifications to OSMRE’s process after 

receiving a citizen complaint will allow both OSMRE and the State regulatory authority to 

dedicate resources toward addressing any violation alleged by a citizen instead of preparing 

superfluous paperwork for each other. The clarification also enhances cooperation and minimizes 

duplication of administration with the State regulatory authority as required by 30 U.S.C. 

1211(c)(12). 

OSMRE will continue to follow the requirements of 30 U.S.C. 1271(a) and the 

implementing regulations found at 30 CFR Parts 842 and 843 and issue a TDN when 

appropriate. Therefore, the final rule does not eliminate the existing TDN process or 

lessen OSMRE’s overall oversight authority, including OSMRE’s ability to enforce 

violations in primacy States, if that is necessary. 

Comment: One citizen commenter emphasized that mining operations must be held accountable 

for daily mining practices and reclamation to ensure protection of the environment. The 

commenter did not support the proposed regulation in any way without explicitly stating a 

rationale or support for this position. Additionally, the commenter states that costs for 

reclamation should be secured initially and “no closure should happen before all work and costs 

are absorbed by the company.” The commenter also asserts that a mining company “CEO should 

be paid what is left if there is anything.” 

Response: Although certain aspects of the comment are not entirely clear or do not relate to the 

proposed rule, OSMRE agrees that mining operations must be held accountable for their mining 
46 

practices to ensure that mining and reclamation are done in an environmentally protective 

manner. One of the stated purposes of SMCRA is to “assure that surface coal mining operations 

are so conducted as to protect the environment,” 30 U.S.C. 1202(d), and OSMRE always has a 

duty to further the purposes of SMCRA. Moreover, as stated elsewhere, this final rule will 

enhance OSMRE’s and the State regulatory authorities’ ability to identify and address alleged 

violations of State regulatory programs so that any violations can be corrected as soon as 

possible. Also, as we have stated in response to other comments, should a citizen have 

information related to an alleged violation at a specific mining operation, he or she is entitled to 

file a citizen complaint, and OSMRE will address any citizen complaints it receives in 

accordance with SMCRA and the relevant regulations to ensure that any violations are timely 

corrected. In addition, information in a citizen complaint may result in OSMRE identifying a 

State regulatory program issue, which OSMRE will address under section 733.12 of this final 

rule. A citizen may also request that OSMRE evaluate a State program as outlined in existing 30 

CFR 733.12(a), that has been redesignated as 30 CFR 733.13(a) under this final rule. With 

regard to reclamation requirements and the cost of reclamation, OSMRE notes that those issues 

were not a part of the proposed rule, and this final rule does not alter any of the existing 

reclamation regulations. Importantly, SMCRA section 509, 30 U.S.C. 1259, and the existing 

regulations at 30 CFR Part 800, have bonding requirements to assure, among other things, 

completion of reclamation plans.

Comment: One commenter asserted that State agency personnel have been physically 

relocated farther from mine sites and have become less effective. The commenter also 
47 

notes that agency personnel have recently changed, which has resulted in a loss of 

institutional memory. 

Response: OSMRE recognizes that the loss of staff and their institutional knowledge can 

be a problem for both OSMRE and State regulatory authorities. Similarly, budget 

savings, which may have been the reason that personnel from State regulatory authorities 

were relocated, is a part of government. Both reasons, however, support OSMRE revising 

its regulations, as OSMRE is doing here, to make them more efficient and effective, and 

to avoid duplication of efforts between a State regulatory authority and OSMRE. This 

final rule enhances OSMRE’s ability to engage in appropriate oversight of State 

regulatory programs. 

Comment: Several commenters offered examples of alleged OSMRE oversight enforcement

failures. 

Response: To the extent the commenters believe there is a failure of any State regulatory 

authority to implement, administer, enforce, or maintain an approved program, OSMRE directs 

the citizens to the provisions of existing 30 CFR 733.12(a) that are being redesignated as 30 

CFR 733.13(a) pursuant to this final rule. Moreover, as to a concern expressed by one 

commenter that the proposed rule would impact an individual’s ability to “protest projects going 

through their own or state/fed[eral] property,” OSMRE’s proposed rule clarification, as adopted 

in this final rule, will not change a citizen’s ability to “protest” or comment on proposed mining 

projects or permitting actions of any individual mine located on private, State, or Federal 

property. OSMRE did not propose to revise, and is not revising, 30 CFR 773.6, which details 
48 

how citizens can participate in permit processing. Thus, the opportunities for the public to 

comment on proposed mining projects or permitting actions provided by SMCRA and further 

explained in 30 CFR 773.6 remain unchanged, including the time to file objections to individual 

mine permits on all property, regardless of ownership. In conclusion, OSMRE will continue to 

take its oversight responsibilities very seriously, in accordance with SMCRA and the 

implementing regulations.

E. OSMRE’s Authorized Representative Will Continue to Formulate “Reason to Believe”

As Mandated by SMCRA; This Includes Using Best Professional Judgment

Comment: One citizens’ group representing many national citizen organizations and 

“thousands of individuals” across the country questioned OSMRE’s assertion that the 

information used to formulate “reason to believe” has created ambiguity within the TDN 

process, in particular related to on-the-ground violations. To support this contention, the 

citizens’ group states that “a search of all [Interior Board of Land Appeals (IBLA or the 

Board)] decisions fails to disclose even one instance where the Board found the longestablished OSMRE Ten Day Notice procedure to be problematic.” 

Response: As explained below, OSMRE disagrees with the commenter’s opinion that 

OSMRE is creating an ambiguity where it does not exist. First, this rule is being 

promulgated to improve OSMRE’s coordination with State regulatory authorities to 

minimize duplication of inspections, enforcement, and administration of SMCRA.

Specifically, this rule provides a streamlined, more uniform, and efficient process for 

OSMRE to follow when it receives a citizen complaint. Because the IBLA typically does 
49 

not get involved until after OSMRE makes a decision on whether to issue a TDN, 

conduct a Federal inspection, or issue a notice of violation or cessation order, it is 

unsurprising that the IBLA has not identified OSMRE’s internal process leading to the 

issuance of a TDN as a problem. 

Second, some of the IBLA cases that the commenter cites illustrate how the 

existing regulations may result in a disparate application of OSMRE’s various 

enforcement tools. For example, the commenter highlights a decision in which the IBLA 

found OSMRE’s decision to defer violations for programmatic review under the 30 CFR 

Part 733 process was not in accordance with the existing regulations. W. Va. Highlands 

Conservancy, et al., 152 IBLA at 193. While it is true that the commenter accurately 

summarized the holding of this decision, it is also true that the facts presented in that case 

demonstrate an OSMRE internal inconsistency when applying the existing Federal 

regulations. Specifically, the case focused on when it was appropriate for OSMRE to use 

the different enforcement tools set forth in 30 U.S.C. 1271(a) and (b) in response to 

complex citizen complaints. See, e.g. id. at 187-188 (The Board rejected OSMRE’s 

attempt to justify its failure to issue TDNs on specific sites as required by 30 U.S.C. 

1271(a) based upon its use of the programmatic review process in 30 U.S.C. 1271(b)). 

The rule OSMRE is finalizing today helps to clarify to agency personnel and the 

public when each of the enforcement tools in 30 U.S.C. 1271(a) and (b) will be used and 

what information OSMRE will rely on when it makes a determination that it has reason 

to believe a violation exists. For instance, if a similar fact pattern to the one in West 

Virginia Highlands Conservancy arose under the regulations finalized today, OSMRE’s 

authorized representative would make a determination whether they have reason to 
50 

believe a violation exists on a specific site based on all readily available information 

available to them. If they have “reason to believe,” they would then issue a TDN. 

However, the revisions made to 30 CFR 842.11(b)(1)(ii)(3) would also allow the State 

regulatory authority to respond that it has taken appropriate action because it, along with 

OSMRE, is immediately implementing steps to correct a programmatic issue using the 

action plan process set forth in revised 30 CFR 733.12. The revised regulations also 

clarify that OSMRE may still take enforcement action under 30 U.S.C. 1271(a) if the 

State regulatory program issue “results in or may imminently result in a violation of the 

approved State program.” Therefore, the revisions to the Federal regulations finalized 

today should help reduce the ambiguity that lead to the West Virginia Highlands

Conservancy case.

Third, despite the cases cited by the commenters, there is no judicial or 

administrative decision defining “reason to believe” as used in 30 U.S.C. 1271(a). One 

case, Castle Mountain Coalition v. OSMRE, explicitly recognizes that OSMRE does not 

have a mandatory duty to act under 30 U.S.C. 1271(a) until it has determined there is 

reason to believe that a violation exists. 2016 WL 3688424, at *6. In another case, a court 

reviewed the “reason to believe” standard in 30 U.S.C. 1271(b) and concluded that a 

determination as to “whether the Secretary of the Interior “has ‘reason to believe’ a 

violation has occurred is a matter committed to her discretion by law.” Dacotah Chapter 

of Sierra Club v. Jewell, No. 12-065, 2013 WL 12109410, at *8 (D.N.D. Oct. 22, 2013). 

The rulemaking that OSMRE is finalizing today ensures that there is no debate that the 

OSMRE authorized representative is allowed to use their independent, professional 

discretion, based on all readily available information, to determine whether they have 
51 

“reason to believe.” This clarification is needed because many of the comments received 

in response to the proposed rulemaking show that the public misunderstands the 

discretion committed to OSMRE’s authorized representative by 30 U.S.C. 1271(a). 

Comment: Many commenters, including industry groups that represent operations that 

mine coal through surface and underground methods, submitted questions and comments 

about the requisite information necessary to establish reason to believe a violation exists 

under the revisions to 30 CFR 842.11 and 842.12 adopted in this final rule. Within this 

general category of comments, one commenter requested that OSMRE include a 

provision in the final rule that the OSMRE authorized representative should not base his 

or her decision to issue a TDN on “bare allegations.” This same commenter also 

requested that OSMRE include language in the final rule that clarifies that the OSMRE 

authorized representative will use and consider information obtained from any source, 

including the permittee, to establish reason to believe a violation exists. 

Response: In accordance with 30 U.S.C. 1271(a), OSMRE can formulate a decision about 

whether reason to believe that a violation exists “on the basis of any information 

available..., including receipt of information from any person....” Emphasis added. 

Consistent with this statutory provision, sections 842.11(b)(1)(i) and 842.12(a) of this 

final rule specify that OSMRE’s authorized representative will consider any readily 

available information when he or she is deciding whether there is reason to believe a 

violation exists, including information from a citizen complainant and any information 

that the relevant State regulatory authority submits to the authorized representative. Any 
52 

readily available information includes information from any person, including the 

permittee, and is not limited to information that OSMRE receives from a citizen or State 

regulatory authority. In addition, as OSMRE stated in the preamble to the proposed rule, 

other examples of sources of readily available information include permit files or public 

records. 85 FR at 28911. However, based on this commenter’s suggestion for 

clarification and other commenters’ similar suggestions, in the rule OSMRE is finalizing, 

OSMRE includes the phrase “from any source” within 30 CFR 842.11(b)(1)(i) and 

842.11(b)(2). This addition will further remove any ambiguity relevant to information an 

OSMRE authorized representative considers when formulating reason to believe and 

reinforces internal consistency in the Federal regulations. 

Moreover, as OSMRE explained in the proposed rule preamble, OSMRE 

considers “any information that is accessible without unreasonable delay” to be “readily 

available information.” 85 FR at 28907. In the proposed rule, OSMRE chose the phrase 

“readily available” purposely “so that the process will proceed as quickly as possible and 

will not become open-ended.” Id. OSMRE agrees with the commenter that the authorized 

representative should not base the decision to issue a TDN on “bare allegations.” 

SMCRA establishes a firm foundation for an authorized representative to exercise 

professional judgment when formulating reason to believe a violation exists. Thus, under 

this final rule, OSMRE’s authorized representative, while using best professional 

judgment, will make the “reason to believe” determination based upon readily available 

information, rather than bare allegations. 

Comment: One commenter suggested that an authorized representative should not have 
53 

discretion to use his or her best professional judgment when evaluating alleged 

violations. The commenter also suggested that, in lieu of the authorized representative, 

the most appropriate person to determine that “reason to believe” a violation exists 

should be a qualified OSMRE career staff employee, who should have a degree in 

engineering, geology, environmental science, or a related field. 

Response: This comment appears to focus on OSMRE’s authorized representative’s 

formulating “reason to believe.” OSMRE agrees with the commenter that an OSMRE 

authorized representative should be a qualified individual with the appropriate 

educational background and specialized experience required to be certified by the 

Director of OSMRE to serve as an authorized representative. However, OSMRE 

disagrees with the commenter’s suggestion that an authorized representative should not 

have discretion to use his or her best professional judgment when evaluating alleged 

violations. The use of best professional judgment is essential for an authorized 

representative.

When enacting SMCRA, Congress mandated that OSMRE “shall have a Director 

who shall be appointed by the President... .” 30 U.S.C. 1211(b). Congress required the 

Director to, among other things, “make those investigations and inspections necessary to 

[e]nsure compliance with this Act[.]” 30 U.S.C. 1211(c)(1). Integral to the Director

carrying out these obligations is hiring appropriate, qualified employees within OSMRE. 

To this point, Congress mandated that “[e]mployees of the Office shall be recruited on 

the basis of their professional competence and capacity to administer the provisions of 

the Act.” 30 U.S.C. 1211(b). Ultimately, it is the OSMRE Director who must ensure that 
54 

employees of OSMRE—including a designated authorized representative—have the 

“professional competence and capacity” to undertake the “investigations and inspections 

necessary” to ensure compliance with SMCRA. See 30 U.S.C. 1211(b) and (c). Only an 

OSMRE employee who is certified as an authorized representative with inspection 

authority may issue a TDN pursuant to section 521(a)(1) of SMCRA. 30 U.S.C. 

1271(a)(1). An employee who is certified as an authorized representative receives a 

badge and identification credentials that he or she carries when on duty. Outside the 

context of this rulemaking, only these same authorized representatives may undertake 

inspection and enforcement actions under section 517 of SMCRA. 30 U.S.C. 1267. 

OSMRE promulgated regulations specific to these tasks at 30 CFR 842 and 843. 

Additionally, as set forth in OSMRE’s Directive INE-18, “Authorized Representatives”, 

OSMRE has established a rigorous process to ensure that the best qualified candidates are 

selected for positions as authorized representatives and that these individuals have the 

“professional competence and capacity” to appropriately issue TDNs based on their best 

professional judgment, consistent with 30 U.S.C. 1211(b). See

https://www.osmre.gov/LRG/docs/directive958.pdf (last accessed Aug. 23, 2020). Based 

on established OSMRE practice and procedure, the Director (or approved designee) may 

certify an OSMRE employee as an authorized representative only upon satisfactory 

completion of significant training and certification requirements. Furthermore, the 

Director (or approved designee) may suspend or withdraw the certification of any 

authorized representative. Each authorized representative with authority to issue TDNs is 

required to hold a four-year college degree with major study in the areas of hydrology, 

agronomy, geology, range conservation, forestry, ecology, civil engineering, mining 
55 

engineering, natural science, biological sciences, natural resources, environmental 

planning, or earth sciences as required by the U.S. Office of Personnel Management’s 

Federal Position Classification and Qualifications. See https://www.opm.gov/policy-dataoversight/classification-qualifications/general-schedule-qualificationstandards/1800/surface-mining-reclamation-specialist-1801/ (last accessed Aug. 23, 

2020). Authorized representatives with authority to issue TDNs are highly educated, 

highly trained individuals who must also undergo a progressive on-the-job training and 

mentoring plan before becoming an authorized representative. The OSMRE Director (or 

designee) approves the training and mentoring plan to ensure competency and capacity to 

administer SMCRA. This information is documented in the authorized representative’s 

personnel file. 

In sum, OSMRE authorized representatives are highly educated, trained, and 

qualified individuals who OSMRE hires precisely because of their ability to exercise 

professional judgment. Specific to this final rule, these individuals are uniquely qualified, 

based upon their professional judgment, to determine whether there is reason to believe a 

violation exists, issue TDNs when necessary, and ensure that violations of a State 

regulatory program are corrected in a timely manner.

Comment: Several citizen commenters oppose the clarification of the TDN process, 

alleging that the proposed rule would no longer treat citizen complaints as true. These 

commenters state that the proposed rule would result in citizen complaints not

being formally investigated within 10 days of the complaint being filed. The commenters 

state that the proposed rule would result in OSMRE dismissing public concerns and 
56 

ignoring mining violations. Many commenters also suggested that the proposed rule was 

not simply a clarification of existing rules.

Response: OSMRE disagrees with these characterizations of the proposed rule and notes 

that, under this final rule, OSMRE will continue to take citizen complaints seriously, in 

recognition of the important role citizens play in the SMCRA enforcement process. When 

OSMRE issues a TDN to a State regulatory authority, the TDN may be based upon 

information that OSMRE initially received in a citizen complaint. However, to fully 

address this comment, OSMRE will explain the existing TDN process as authorized by 

section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a), and implemented in OSMRE’s existing 

regulations at 30 CFR 842.11. 

Section 521(a)(1) provides that the “reason to believe” determination in the TDN 

context is based upon “any information available to [the Secretary], including receipt of 

information from any person.” Likewise, under the existing regulations at section 

842.11(b)(1)(i), as they pertain to the TDN process, OSMRE’s authorized 

representative’s determination of whether he or she has “reason to believe” is based upon 

“information available.” Moreover, under existing section 842.11(b)(2), upon receipt of a 

citizen complaint, OSMRE’s authorized representative transmits the citizen complaint to 

the State regulatory authority as a TDN after the authorized representative has formulated 

reason to believe that a violation, condition or practice exists.” The OSMRE authorized 

representative’s formulation of reason to believe includes analysis based on SMCRA and 

the Federal regulations, surface coal mining expertise, and any information readily 

available. OSMRE explained in the proposed rule that some might have interpreted 
57 

existing section 842.11(b)(2) to mean that all OSMRE has to do is determine whether the 

facts alleged in a citizen complaint would constitute a violation before issuing a TDN. 

However, the existing regulations are not designed to have OSMRE merely serve as a 

conduit to the State regulatory authority. OSMRE’s authorized representative must 

analyze the information. In the proposed rule, OSMRE explained that when the 

authorized representative performs the analysis necessary to formulate reason to believe, 

he or she should consider all readily available information—including information 

ascertained from the State regulatory authority and any additional information that 

citizens provide. While it is accurate that OSMRE proposed to remove the phrase “if 

true” from existing section 842.11(b)(2), and has adopted that change in this final rule, 

the proposed rule was not intended to weaken the TDN rules with respect to an OSMRE 

authorized representative’s analysis of whether he or she has “reason to believe” that a 

violation exists. In fact, in the proposed rule, OSMRE proposed that the authorized 

representative would consider information that is vital to understanding and examining an 

alleged violation. OSMRE’s authorized representative must weigh the evidence in front 

of him or her, especially if some of that evidence is contradictory—this is part of the 

OSMRE authorized representative’s exercise of professional judgment based upon 

readily available information in determining whether he or she has reason to believe a 

violation exists. 

In this final rule, the removal of the phrase “if true” from 30 CFR 842.11(b)(2) 

coupled with the insertion of the phrase “on the basis of any information readily 

available” found at proposed 30 CFR 842.11(b)(1)(i) removes ambiguity in the existing 

TDN process, increases efficiency, and allows OSMRE’s authorized representative to 
58 

more fully exercise his or her professional judgment. This approach is consistent with 

SMCRA and even OSMRE’s existing regulations at section 842.11(b)(1)(i). In this 

regard, the relevant provisions that OSMRE is adopting in this final rule are a 

clarification of the existing regulations. However, this clarification is necessary to 

remove any confusion that was created by the “if true” language.

Moreover, Congress created OSMRE as the expert agency that administers 

SMCRA, 30 U.S.C. 1211(a) and (c), and requires that “[e]mployees of [OSMRE] shall be 

recruited on the basis of their professional competence and capacity to administer the 

provisions of this Act” (30 U.S.C. 1211(b)). Thus, it stands to reason that OSMRE, 

through its authorized representative, must apply expertise and professional judgment in 

determining whether “reason to believe” exists. Interpreting SMCRA in a manner that 

relegates the OSMRE authorized representative to a position of a mere conduit of a 

citizen complaint to the State regulatory authority is not supported by SMCRA or its 

implementing regulations. Therefore, the commenters’ assumption that a citizen 

complaint must be treated “as true” ignores OSMRE’s expertise in administering 

SMCRA and does not comport with SMCRA or even OSMRE’s existing TDN 

regulations and practice. Nothing in SMCRA requires OSMRE to accept alleged facts as 

true in a vacuum; the totality of readily available information must be considered in order 

to prevent issuing an unwarranted TDN to a State regulatory authority, which would 

needlessly waste OSMRE’s and the State regulatory authority’s time and resources.

For these precise reasons, the proposed clarification, which OSMRE is adopting 

in this final rule, removes any unnecessary conflict between OSMRE and the State 

regulatory authority. OSMRE’s experience has shown that when OSMRE works 
59 

cooperatively with State regulatory authorities, the TDN process works best, and 

problems are resolved more efficiently, furthering the purposes of SMCRA. See 

generally, 30 U.S.C. 1202(a) and (d). For example, under the existing TDN process, 

OSMRE does not always receive important information from the State regulatory 

authority that would inform the “reason to believe” inquiry, but it may receive such 

information from a citizen. Under this final rule, OSMRE must consider information the 

State regulatory authority provides about an alleged violation, eliminating duplication of 

resources and processes between Federal and State agencies. Cooperation between 

OSMRE and State regulatory authorities is mandated by SMCRA to “minimize 

duplication of inspections, enforcement, and administration of the Act.” 30 U.S.C. 

1211(c)(12). This final rule does just that. Once OSMRE formulates reason to believe 

that a possible violation exists and sends a TDN to a State regulatory authority, the State 

will continue to have ten days to take appropriate action to cause the alleged violation to 

be corrected or to demonstrate good cause for not correcting the alleged violation. Thus, 

the regulations OSMRE is adopting in this final rule will continue to be in conformity 

with section 521(a)(1) of SMCRA. 

Comment: Several commenters suggested that the proposed rule clarification would 

provide states with unlimited time to review and respond to citizen complaints. Further, 

these commenters alleged that the proposed rule provision would render action on citizen 

complaints discretionary. According to one commenter, the proposed rule would 

undermine SMCRA at section 521(a) by changing the specified response time and 

eliminating a mandated deadline. 
60 

Response: These characterizations neither accurately reflect the proposed rule nor reflect 

a proper understanding of SMCRA. The proposed rule was aimed at enhancing the 

coordination process between OSMRE and its State regulatory program partners to 

ensure that all information readily available is considered by the authorized 

representative before deciding whether there is reason to believe that a violation exists. 

The existing regulations do not specifically state that the authorized representative may 

consider information that a State regulatory authority provides in his or her determination 

of whether there is reason to believe a violation exists. Explicitly stating that information 

from the State regulatory authority may be considered will remove ambiguity and ensure 

that all stakeholders are aware of the information that OSMRE can consider when its

authorized representative formulates reason to believe. Moreover, there may have been 

inconsistent levels of review of information across the bureau. Specifically stating that

OSMRE will consider readily available information when formulating reason to believe 

will also ensure that it uniformly considers all simple and effective documentation of the 

alleged violation, condition, or practice. Historically, while OSMRE typically considered

information in its possession, the potential ambiguity in OSMRE’s existing regulations

may have resulted in OSMRE accepting allegations in a complaint as true without the 

benefit of any information that the State regulatory authority may have chosen to provide. 

The practice of issuing TDNs without the benefit of information from the State regulatory 

authority increasingly resulted in the issuance of TDNs when the State regulatory 

authority was already investigating the issue or had previously determined that there was 

not a violation of the approved State regulatory program. As described in response to 
61 

other comments, this is inefficient and has resulted in duplicative processes for both 

OSMRE and the State regulatory authorities. OSMRE does not always receive important 

information from a citizen that would inform the “reason to believe” inquiry, but it may 

receive such information from the State regulatory authority, and the OSMRE authorized 

representative should be afforded this opportunity. 

By way of example, a recent complaint received by an OSMRE field office involved 

blasting related to road construction. This complaint was ultimately found to be unrelated to a 

SMCRA permit. Simply generating a TDN, without considering all information readily 

available, resulted in a waste of OSMRE and State regulatory authority resources and taxpayer 

money and time; it also unnecessarily redirected resources and time away from true SMCRArelated issues. These inefficiencies could easily have been avoided by considering all readily 

available information, including any information the State regulatory authority chose to provide. 

Again, it is a basic requirement of SMCRA that OSMRE must “cooperate with...State 

regulatory authorities to minimize duplication of inspections, enforcement, and administration 

of [SMCRA].” 30 U.S.C. 1211(c)(12). Furthermore, as noted above, the Supreme Court in 

Hodel, 452 U.S. at 289, explained that: “[SMCRA] establishes a program of cooperative 

federalism that allows the States, within limits established by federal minimum standards, to

enact and administer their own regulatory programs, structured to meet their own particular 

needs.” 

 The removal of the potential inconsistency between existing section 

842.11(b)(1)(i) and existing section 842.11(b)(2) in this final rule properly enhances the 

cooperative federalism intended by Congress when it enacted SMCRA by allowing 

OSMRE to consider information that a State regulatory authority chooses to provide 
62 

when OSMRE is assessing whether it has reason to believe that a violation exists. 

Furthermore, removing the phrase “if true” eliminates any perception that OSMRE is a 

mere conduit to the State regulatory authority when in reality OSMRE should exercise 

best professional judgment when formulating reason to believe. The objective of the 

rulemaking is to minimize, to the extent possible, duplication of efforts associated with 

inspections, enforcement, and administration of SMCRA, while also ensuring that the 

public is involved in the enforcement process, which will allow potential violations of 

SMCRA and approved State programs to be identified and addressed as soon as possible. 

Of course, after the revisions to the existing regulations that OSMRE is adopting in this 

final rule take effect, OSMRE will continue to exercise the oversight of State regulatory 

programs that SMCRA requires. 

OSMRE disagrees with the commenters’ suggestion that the rule change OSMRE 

is adopting will result in a State regulatory authority having unlimited review time. The 

final rule does not alter the SMCRA-mandated ten days that a State regulatory authority 

has to respond once OSMRE issues a TDN. 30 U.S.C. 1271(a)(1). However, the 

clarification does afford OSMRE an opportunity to consider all readily information, 

including any information the State regulatory chooses to provide, when formulating 

reason to believe before issuing any TDN to the State regulatory authority. Under 

existing section 842.11(b)(1)(i), the authorized representative already has the authority to 

consider “information available” before determining that reason to believe exists. In the 

proposed rule, OSMRE explained that information that the authorized representative 

considers must be “readily available, so that the process will proceed as quickly as 

possible and will not become open-ended.” Thus, considering “readily available 
63 

information” under this final rule may create, at most, only a modest increase in the 

amount of time it takes the authorized representative to decide whether he or she has 

“reason to believe.” Further, affording OSMRE the opportunity to easily ascertain if the 

State regulatory authority has been appropriately put on notice of a request for Federal 

inspection, including the possible violation—as is already required under the existing 

regulations at 30 CFR 842.12(a)--and whether or not the State regulatory authority has 

investigated or is actively investigating the subject of the complaint eliminates

duplication and redundancy of State and Federal enforcement activities. For example, if 

OSMRE obtains readily available information that demonstrates that the State regulatory 

authority is actively investigating a citizen complaint, the OSMRE authorized 

representative may, using professional judgment, consider the State regulatory authority’s 

action before determining whether reason to believe exists. 

In summary, this final rule clarifies the existing TDN regulations set forth at 30 CFR 

842.11 and 842.12. Nothing in this final rule nullifies the statutory requirements that OSMRE 

must issue a TDN when it determines that there is reason to believe that a violation exists and 

that a State regulatory authority has ten days to respond. As is true with the existing 

regulations, the final rule requires that there are only two possible outcomes when an 

authorized representative reviews a citizen complaint: 1) the authorized representative issues a 

TDN because there is reason to believe a possible violation exists, or 2) the authorized 

representative declines to issue a TDN because he or she does not have reason to believe a 

possible violation exists. Under this final rule, the authorized representative does not have 

discretion to not issue a TDN to the State regulatory authority once he or she determines, based 

on professional judgment, that there is reason to believe that a violation exists; issuance of a 
64 

TDN then becomes mandatory. If the information in the citizen complaint, along with any 

other readily available information, is not sufficient to formulate reason to believe, the 

authorized representative will not issue a TDN. Finally, to ensure transparency, OSMRE will 

continue the practice of sending a letter to the citizen complainant explaining the decision to 

issue or not issue a TDN and the rationale for this decision. It is standard OSMRE practice, 

absent a citizen complainant’s request for confidentiality, to also provide the State regulatory 

authority a copy of the letter to facilitate collaboration. 

F. It is Important to Clarify that “Any Information” Under 30 U.S.C. 1271(a) Includes

Information from the State Regulatory Authority

Comment: A coal industry group comprised of several companies in an Appalachian 

Basin-based coal State offered significant support for OSMRE’s proposed clarification of 

the existing regulations related to the issuance of TDNs and the proposed enhancement of 

corrective action for State regulatory program issues. This group remarked that the 

proposed clarification to the existing regulations would allow regulatory authorities to 

use more information as part of their decision-making. Because, under the proposal, the 

regulations would clearly set forth that OSMRE will consider all readily available 

information prior to issuing a TDN, the commenter expressed that view that the proposed 

clarification would provide more transparency about the TDN process and allow for more 

cooperation between the State regulatory authority and OSMRE. The commenter also 

noted that the enhanced cooperation between OSMRE and the State regulatory authority 

would ensure that mine operations comply with SMCRA. 

The coal industry group commenter noted that allowing State regulatory 

authorities to provide information that is directly relevant to citizen complaints before 
65 

OSMRE issues TDNs is positive and improves the process. The commenter pointed out 

that the clarification would be an improvement and would promote efficiency because the 

existing process may result in the issuance of a TDN despite the fact that the State 

regulatory authority has valuable information that is directly related to the alleged 

violation. The commenter noted that without relevant information from the State 

regulatory authority, OSMRE may not have an opportunity to consider the totality of the 

situation in advance, and such an omission decreases efficiency. The commenter also 

noted that frequently the State regulatory authority and OSMRE receive the same 

complaint resulting in both agencies undertaking duplicative investigations, which the 

commenter claimed is in contravention of section 201(c)(12) of SMCRA, 30 U.S.C. 

1211(c)(12). 

Response: OSMRE concurs with these comments as they highlight the value of 

coordination between the primary SMCRA regulatory authority, which is the State 

regulatory authority, and OSMRE as the oversight authority. Although, in the TDN 

context, OSMRE is exercising oversight of State regulatory authorities, there is still room

for up front cooperation between OSMRE and the State regulatory authority to minimize 

duplication of inspections, enforcement, and administration of SMCRA, as section 

201(c)(12) of SMCRA, 30 U.S.C. 1211(c)(12), contemplates. Most importantly, OSMRE 

values the commenter’s recognition of the positive impacts of the clarification OSMRE is 

adopting in this final rule as it will improve compliance with SMCRA by promoting 

cooperative federalism and ensuring that OSMRE considers all readily available 

information. For four decades OSMRE has observed that protecting society and the 
66 

environment from the adverse effects of surface coal mining operations is accomplished 

more effectively and efficiently when State regulatory authorities—that have direct 

authority to administer SMCRA within their borders—and OSMRE work cooperatively, 

rather than working in isolation, to ensure timely resolution of issues. Not only does this 

coordination promote the cooperative federalism construct established within SMCRA, it 

more effectively achieves the purposes of SMCRA as outlined in section 102 of SMCRA, 

30 U.S.C. 1202. Specifically, considering a State regulatory authority’s unique position to 

assess its approved State program, it makes sense to consult with the State regulatory 

authority to determine if steps have already been taken or are underway to address 

alleged violations. This commenter understands that, with OSMRE’s consideration of all 

readily available information, including information provided by the State regulatory 

authority, the existing process is improved. However, OSMRE notes that being able to 

consider “readily available information” is not the same as being able to consider “the 

totality of the situation in advance.” Considering only “readily available information” up 

front will allow the process to proceed relatively quickly. Even with this distinction, 

OSMRE is confident that the clarification that OSMRE is adopting in this final rule will 

achieve the intended result of greater cooperation and a more efficient and effective

enforcement of SMCRA. 

Comment: Several commenters objected to OSMRE’s proposal to add “readily available” 

to provisions at 30 CFR 842.11(b)(1)(i), 842.11(b)(2), and 842.12(a), raising concerns 

that information that is not currently in OSMRE’s possession and that has to be gathered 

does not constitute “readily available information.” Furthermore, one of these 
67 

commenters opined that any delay resulting from gathering information was not 

acceptable and directly conflicts with the “shall immediately” order a Federal inspection 

language found in 30 U.S.C. 1271(a)(1) and the existing regulations. Another commenter 

suggested that OSMRE’s explanation of the proposed provision inserts more uncertainty 

into the TDN process because it does not define what OSMRE deems “accessible without 

unreasonable delay.” A commenter further opined that the language “shall immediately” 

in 30 U.S.C. 1271(a) requires OSMRE to accept only information submitted in a citizen 

complaint, rather than readily available information, to establish reason to believe that a 

violation exists. 

Response: With respect to the information OSMRE can consider when making a “reason 

to believe” determination, the statutory language is not as specific as the commenter 

suggests. As explained throughout this final rule notice, SMCRA grants the Secretary, 

acting through OSMRE, the authority to promulgate regulations that may be necessary to 

carry out the purposes and provisions of SMCRA. 30 U.S.C. 1211(c)(2). OSMRE is 

using SMCRA’s rulemaking authority, in part, to specify the information that OSMRE’s 

authorized representative can obtain and consider when making a “reason to believe” 

determination. The proposed rule language, which OSMRE is adopting in this final rule, 

is consistent with the statutory language at 30 U.S.C. 1271(a)(1) and allows an authorized 

representative to review information that is readily available. A more detailed discussion 

of the information that OSMRE considers to be “readily available” is contained 

elsewhere in the proposed rule preamble (85 FR at 28911) and in this final rule, but most 

certainly includes information that the OSMRE authorized representative can easily and 
68 

promptly access, such as permit documentation about the specific mine site, OSMRE’s

inspection history, and data retrieved from the State regulatory authority. Fundamentally, 

as to the commenter’s other point about the “shall immediately” language in 30 U.S.C. 

1271(a), OSMRE notes that the statute provides, absent an imminent harm scenario, that 

OSMRE “shall immediately order Federal inspection” in a primacy State only after it 

issues a TDN to the State regulatory authority, and OSMRE finds that a violation remains 

uncorrected at the conclusion of the TDN process. The aspect of the final rule that the 

commenters take issue with – OSMRE’s consideration of readily available information as 

part of the “reason to believe” determination – occurs before OSMRE issues a TDN to a 

State regulatory authority and is therefore consistent with SMCRA. Importantly, at the 

conclusion of the TDN process, OSMRE will immediately undertake a Federal inspection 

if it finds that a violation continues to exist.

Moreover, accepting only information contained in a citizen complaint as the 

basis for a “reason to believe” determination is not in accordance with prudent regulatory 

implementation as explained in the proposed rule. 85 FR at 28908, 28910-11. If OSMRE 

were to accept only information contained in a citizen complaint to establish “reason to 

believe,” OSMRE could be in a situation of issuing a TDN to a State regulatory authority 

when a complainant lacks information or knowledge concerning the possible violation 

that OSMRE may be able to readily ascertain under this final rule. OSMRE could also be 

in a situation of concluding that the citizen complaint does not establish “reason to 

believe” and refusing to issue a TDN, but for readily available information from the State 

regulatory authority that might otherwise establish “reason to believe.” Moreover, if 

OSMRE considers only information in a citizen complaint, the complaint process could 
69 

be misused, unwittingly or otherwise, resulting in frivolous and unfounded allegations 

and unnecessary TDNs. Also, a fair reading of the legislative history supporting the 

passage of SMCRA indicates that considering only information in a citizen complaint 

when formulating reason to believe in association with the TDN process is not consistent 

with congressional intent. This issue was addressed in 1977 in House Report 95-218: “[i]t 

is anticipated that ‘reasonable belief’ could be established by a snapshot of an operation 

or other simple and effective documentation of a violation.” Emphasis added. As noted in 

the proposed rule, while this passage from the legislative history appears to be referring 

to information that a citizen may provide, it is reasonable to apply the same principle to 

30 U.S.C. 1271(a)(1), as enacted. This final rule is consistent with congressional intent in 

the formulation of SMCRA, and, more importantly, consistent with SMCRA, as enacted,

with respect to information that can be used to establish reason to believe that a violation 

exists.

Comment: A commenter indicated that OSMRE should consider all available 

information, not just readily available information, and should include information from 

any person and not just the State regulatory authority. 

Response: OSMRE has considered this comment and agrees that OSMRE should 

consider information from any source; however, as explained below, OSMRE disagrees 

that it should consider “all available information” rather than readily available 

information. OSMRE has revised the final rule text at 30 CFR 842.11(b)(1)(i) to further 

clarify that the authorized representative will consider all readily available information 

“from any source, including any information a citizen complainant or the relevant State 
70 

regulatory authority submits[.]” This change reflects OSMRE’s intent with respect to 

readily available information obtained from any source. For consistency, OSMRE has 

also incorporated the phrase “from any source” into revised 30 CFR 842.11(b)(2). The 

plain language of this revised text makes clear that OSMRE will consider information 

from any source and not just the two possible sources of information that OSMRE 

proposed to list as examples of sources—the State regulatory authority and a citizen. As 

OSMRE stated in the preamble to the proposed rule, other examples of sources of readily 

available information may also include permit files or other public records. 85 FR at

28911. 

The only limitation as to the source of information that OSMRE’s authorized 

representative can consider is that the information must be readily available. As stated in 

the proposed rule, inclusion of the word “readily available” to modify “any information” 

is important to ensure that the process of making a “reason to believe” determination 

proceeds as quickly as possible and does not become open-ended. 85 FR at 28907; see 

also OSMRE’s other responses in this section. If OSMRE were to delay its “reason to 

believe” determination until all available information was discovered, there could be 

substantial delays in the process, which would be contrary to the process Congress set 

forth in 30 U.S.C. 1271(a)(1). Substantial delays in determining “reason to believe” 

would also be contrary to a goal of this rulemaking—ensuring that alleged violations are 

addressed quickly, effectively, and efficiently. Thus, OSMRE is not making a change to 

its proposed rule to consider all information that could possibly be obtained; OSMRE 

will consider only that information which is readily available. 
71 

Comment: One commenter expressed doubt about OSMRE’s rationale for clarifying that 

a State regulatory authority should be a source of information necessary to formulate 

reason to believe. Specifically, the commenter expressed doubt that OSMRE and the 

State regulatory authorities are inundated with duplicative complaints. 

Response: SMCRA provides that OSMRE will issue a TDN “[w]henever, on the basis of 

any information available to him, including receipt of information from any person, the 

Secretary has reason to believe that any person is in violation of any requirement of this 

Act . . . .” 30 U.S.C. 1271(a)(1) (emphasis added). A plain reading of this provision is 

that OSMRE can consider any information it has available regardless of the source. It is 

only natural that a State regulatory authority could be a source of information that 

OSMRE’s authorized representative uses to formulate reason to believe. 

OSMRE has not claimed that it is “inundated” with citizen complaints that have 

also been issued to the State regulatory authority. However, OSMRE has experienced 

many instances where it has received a citizen complaint that was identical to a citizen 

complaint received by a State regulatory authority. When this has occurred, oftentimes 

OSMRE has learned that the State regulatory authority was either already investigating 

the alleged violation or had reached a decision about the alleged violation. Such 

information would be useful to OSMRE in formulating reason to believe. It has been a 

regulatory requirement since 1982 that, when requesting a Federal inspection, citizens are 

required to submit complaints to the State regulatory authority before or simultaneously

with submitting the complaint to OSMRE. 47 FR at 35628. In OSMRE’s experience, and 

based upon data acquired over 43 years of implementing SMCRA, it has become 
72 

obvious, as OSMRE expected in 1982, that “if citizens contact the State initially, most 

problems will be resolved satisfactorily without the need for intrusion by the Federal 

government.” Id. Thus, it only makes sense for OSMRE to revise the SMCRA 

implementing regulations to allow OSMRE’s authorize representative to consider readily 

available information from the State regulatory authority that is relevant to the possible 

violation before OSMRE issues a TDN. That way, OSMRE and the State regulatory 

authority can avoid an unnecessary exchange of paperwork instead of resolving alleged 

violations. This simple change will make the process more effective and will conserve 

scarce government resources.

Comment: A commenter supported the proposed rule clarification at 30 CFR 

842.11(b)(1)(i) and 842.11(b)(2) that would allow OSMRE to consider any information 

readily available when determining whether there is reason to believe that a violation 

exists. The commenter, which represents the coal industry, added that it is appropriate for 

OSMRE to provide these clarifications to the process so that OSMRE can determine 

whether information submitted in a citizen complaint constitutes documentation of 

alleged violations; the commenter also notes that OSMRE must have the authority to 

evaluate information objectively in order to determine the validity of allegations. Further, 

the commenter supports OSMRE’s ability to review readily available information, from 

any source, including information that may be available to the State regulatory 

authorities. The commenter finds that this would allow OSMRE to more accurately 

identify the specific nature of an alleged violation or program issue identified by a 

citizen. Moreover, the commenter stated that the clarification would provide OSMRE an 
73 

opportunity to apply a remedy that most appropriately corresponds to the alleged 

violation—whether it is a permit specific violation, on-the-ground violation, or is better 

characterized as a State regulatory program issue. 

Response: OSMRE agrees with the commenter that it is necessary for the OSMRE 

authorized representative to consider any information readily available when formulating 

reason to believe. This clarification specifies that information provided by the State 

regulatory authority is included in the “any information” that an OSMRE authorized 

representative may consider, consistent with 30 U.S.C. 1271(a), while also highlighting 

the importance of timely formulation of reason to believe to ensure prompt resolution of a 

possible violation. The latter point is clarified by OSMRE adopting the proposal to 

include the word “readily” in 30 CFR 842.11(b)(1)(i) and 842.11(b)(2). Also, the 

clarification of 30 CFR 842.11(b)(2), which OSMRE is adopting in this final rule, 

codifies OSMRE’s flexibility to more appropriately analyze and identify the existence of 

violations, and, if necessary, to issue a TDN or use the enhanced Part 733 process for a 

State regulatory program issue. The ability to efficiently and effectively differentiate 

between violations addressed under revised section 842.11 and State regulatory program 

issues, as defined in this final rule and addressed under revised section 733.12, is an 

important point. As the regulations currently exist, there is ambiguity related to these two 

distinct resolutions of problems that may be alleged in citizen complaints—those outlined 

in section 521(a) of SMCRA (site-specific) and those outlined in section 521(b) of 

SMCRA (program issue). As the commenter notes, it is important to clearly differentiate 

between site-specific alleged violations governed by section 521(a) and 30 CFR Part 842, 
74 

under which the TDN process is invoked, and State regulatory program issues related to a 

State regulatory authority’s alleged failure to implement, administer, maintain, or enforce 

its approved program governed by section 521(b) of SMCRA and 30 CFR Part 733. In 

this final rule, OSMRE is seeking to eliminate this ambiguity and afford OSMRE the 

discretion to resolve site-specific violations and program issues by the most appropriate 

method while working in coordination with the State regulatory authority. 

G. Citizens’ Ability to Request Federal Inspections Is Not Diminished

As discussed throughout OSMRE’s responses to comments received, several 

commenters expressed concern over the impact of the proposed rule on Federal 

inspections, while other commenters offered suggestions for further altering the 

regulations related to requesting Federal inspections pursuant to 30 CFR 842.12. 

Comment: A commenter challenged OSMRE’s proposed language in section 842.12(a) 

requiring a citizen, when requesting a Federal inspection, to provide the basis for their 

assertion that a State regulatory authority failed to act upon an alleged violation. 

Response: As proposed and finalized in this rule, this provision will not be overly 

burdensome for a citizen complainant. For example, if the complainant notifies the State 

regulatory authority simultaneously with filing a complaint with OSMRE, the basis for 

the person’s assertion could be as simple as restating the allegations in the complaint 

made to the State regulatory authority, coupled with the action, if any, taken by the State 

regulatory authority in response. However, OSMRE notes that a citizen complainant 
75 

should provide as much information as possible, as that information will inform the 

OSMRE authorized representative’s “reason to believe” determination. In all cases, 

OSMRE’s authorized representative will consider readily available information, in 

addition to any information that the complainant may provide, as part of the authorized 

representative’s “reason to believe” determination. As noted previously, requiring the 

citizen complainant to notify the State regulatory authority before or simultaneously with 

filing a request for a Federal inspection with OSMRE will give the State regulatory 

authority an opportunity to address the issue raised. This requirement is not unreasonable 

and should help prevent duplicative efforts. 

Comment: A commenter requested that OSMRE amend section 842.12(a) to incorporate 

text contained in 30 U.S.C. 1267(h)(1) by inserting the phrase “at the surface mining site” 

after the word “exists” in the first sentence in proposed section 842.12(a), so that it would 

read: Any person may request a Federal inspection under § 842.11(b) by providing to an 

authorized representative a signed, written statement (or an oral report followed by a 

signed written statement) setting forth information that, along with any other readily 

available information, may give the authorized representative reason to believe that a 

violation, condition, or practice referred to in § 842.11(b)(1)(i) exists [at the surface 

mining site]. The commenter suggested that the same change be made to proposed 

section 842.11(b)(1)(i) by inserting the same phrase in the first sentence after the first 

appearance of the word “exists” and before the term “a violation” in the middle of the 

first sentence to limit citizen complaints, and any accompanying inspection, to on-theground impacts. 
76 

Response: OSMRE declines to make the suggested change because SMCRA does not 

include this language in 30 U.S.C. 1271(a). As explained elsewhere in this final rule, if a 

citizen complainant makes OSMRE aware of a State regulatory program issue that has 

not resulted in actual or imminent violation of the approved State program that often 

manifests as an on-the-ground impact at a specific site, OSMRE will handle the issue 

initially through the enhancements to the 30 CFR Part 733 process adopted in this final 

rule. However, as noted repeatedly, OSMRE will still initiate an appropriate Federal 

enforcement action, such as issuance of a TDN, if the State regulatory program issue 

results in, or may imminently result in, a violation of the approved State program. 

Comment: A commenter requested that OSMRE clarify that a request for a Federal 

inspection under 30 CFR 842.12 may be denied if it is clear that the request is a repeat of 

substantially identical requests made by the same person on the same issue. 

Response: This rulemaking does not provide that OSMRE will automatically deny a 

request for a Federal inspection simply because a substantially identical request has been 

made previously. Instead, this rulemaking requires OSMRE to make a fact-specific 

determination each time it receives a citizen complaint or other allegation of a violation. 

First, the OSMRE authorized representative must determine whether the alleged 

violation would constitute imminent harm. If so, OSMRE will bypass the TDN process 

and will proceed directly to a Federal inspection if the person supplying the information 

(usually in the form of a citizen complaint) provides adequate proof that there is an 
77 

imminent danger to the public health and safety or a significant, imminent environmental 

harm and the State has failed to take appropriate action. See 30 U.S.C. 1271(a)(1) and (2). 

Nothing in this final rule is intended to modify these essential provisions of SMCRA and 

the existing regulations, which are aimed at immediately identifying and correcting 

imminent harm scenarios. 

Second, the OSMRE authorized representative must issue a TDN to a State 

regulatory authority whenever he or she has reason to believe a violation exists. 30 

U.S.C. 1271(a)(1) and 30 CFR 842.11(b)(1). The final rule makes clear that when 

determining whether he or she has “reason to believe,” OSMRE’s authorized 

representative must make a fact-specific inquiry based on readily available information. 

30 CFR 842.11(b)(1)(i). If OSMRE has already received a similar citizen complaint or if 

a substantially identical complaint has been filed with the State regulatory authority, and 

the State regulatory authority has investigated the matter, OSMRE may have more 

information readily available to determine if it has reason to believe a violation exists. 

Such information could lead the OSMRE authorized representative to determine that he 

or she does not have “reason to believe” because earlier, similar complaints had not 

revealed a violation. Similarly, if OSMRE has already issued a TDN based on a 

previously received similar complaint, it is unlikely that OSMRE will have reason to 

believe that another violation exists; without the requisite “reason to believe,” the 

authorized representative will not issue another TDN. Instead, as has been OSMRE’s 

practice, OSMRE will inform the citizen in writing that subsequent citizen complaints are 

already being resolved through an existing TDN process, and a new TDN process will 

not be initiated. OSMRE will retain all citizen complaints in the record of the existing 
78 

TDN process. It is also possible, however, that the OSMRE authorized representative will 

review what seems to be a similar complaint and formulate reason to believe that a 

different or renewed violation exists. In that scenario, the OSMRE authorized 

representative will issue a new TDN. Although many variations are possible, the OSMRE 

authorized representative will consider the facts alleged in each citizen complaint and any 

other readily available information before deciding if he or she has reason to believe a 

violation exists. 

Comment: A commenter suggested that OSMRE clarify the final rule text at 30 CFR 

842.12 to require citizens to exhaust all remedies afforded to them under each respective 

State regulatory program before requesting a Federal inspection. The commenter further 

opined that OSMRE should better delineate between the process it will follow when it 

receives a request for a Federal inspection in a State where OSMRE operates a Federal 

program and a primacy State. For primacy States, the commenter states that OSMRE 

should defer to the State process under which the alleged violation occurs, including the 

exhaustion of all State remedies. 

Response: Nothing in SMCRA authorizes OSMRE to require that a citizen exhaust their 

remedies under a State regulatory program before requesting a Federal inspection. See 30 

U.S.C. 1267(h)(1) and 1271(a)(1). Thus, OSMRE did not propose and is not finalizing a 

rule that would require a citizen to exhaust its remedies under a State program before 

requesting a Federal inspection from OSMRE. OSMRE notes, however, that by clarifying 

that OSMRE’s authorized representative can review information from a State regulatory 
79 

authority before determining whether he or she has “reason to believe,” OSMRE is 

recognizing that a State regulatory authority, as the primary SMCRA enforcement agency 

within its jurisdiction, is likely to have relevant information. Although the OSMRE 

authorized representative will make an independent determination of his or her “reason to 

believe,” this change better recognizes the State regulatory authority’s expertise. 

In response to the commenter’s suggestion that OSMRE should delineate between 

situations where the State regulatory authority is the primacy enforcement authority—as 

in most situations—and when OSMRE is the primary regulatory authority, such as in the 

State of Tennessee, OSMRE reviewed its regulations and concluded that 30 CFR Part 

842, as finalized today, clearly distinguishes between OSMRE’s oversight function in 

monitoring and evaluating the administration of approved State programs, including 

inspections and enforcement of Federal programs. Compare 30 CFR 842.11(b)(1)(ii)(A) 

(Federal program states) with 842.11(b)(1)(ii)(B) (primacy states). As specified in these 

regulations, the TDN process does not apply to Federal programs, where OSMRE is the 

regulatory authority. 

Comment: One commenter supported the proposed addition to 30 CFR 842.12(a) 

requiring that a citizen provide an email address, if the citizen possesses one, when 

submitting the statement required to accompany a request for a Federal inspection. 

Response: OSMRE agrees and is adopting this proposal in the final rule to allow for a 

more expeditious manner to contact citizen complainants, if necessary. 

H. OSMRE’s Enhancement to the Existing 30 CFR Part 733 Process is Aimed at
80 

Addressing State Regulatory Program Issues Early and Promptly Resolving the Issues 

Comment: Several commenters opine that the 30 CFR Part 733 process is an inadequate 

method of dealing with State regulatory program issues because it creates a delay in 

enforcement. These same commenters also claim that the existing 30 CFR Part 733 

process does not require prompt action by the State regulatory authority because of the 

public notice requirement found in existing 30 CFR 733.12(d). 

Response: OSMRE agrees with the commenters that use of the existing 30 CFR Part 733 

process can take more time than is warranted to address issues requiring a timely 

response. However, the use of action plans as described in the finalized and redesignated 

section 733.12 does not have the same time requirements that are associated with existing 

section 733.12, which will be redesignated as 30 CFR 733.13 under this final rule. This 

will promote more prompt resolution of State regulatory program issues, as these issues 

will be identified prior to the issues escalating to the point where substitution of Federal 

enforcement or withdrawing part or all of a State program are necessary. Moreover, as 

OSMRE has repeatedly noted, even if OSMRE and the State regulatory authority are 

engaged in the corrective action process, including developing an action plan pursuant to 

the enhanced provisions of 30 CFR Part 733, finalized in this rulemaking, the State 

regulatory authority and OSMRE will still take an appropriate enforcement action if there 

is an actual or imminent violation of the approved State program. In OSMRE’s 

experience, a violation of the approved State program often manifests itself as an on-theground impact, but may also manifest by other means, such as a failure to submit a 

required certification or monitoring report. 
81 

Comment: A few commenters asserted that the existing process outlined in 30 CFR Part 

733 has only been used 10 times in the history of SMCRA. 

Response: OSMRE agrees with the commenters that OSMRE has used the 30 CFR Part 

733 process infrequently since the inception of SMCRA. Prior to the enhancements to 30 

CFR Part 733, finalized in this rulemaking, the existing 30 CFR Part 733 process, which 

was limited to substituting Federal enforcement of State programs or withdrawing 

approval of part or all of a State program, was a lengthy process that involved significant 

OSMRE and State regulatory authority interaction over a long period. The seriousness of 

substitution or withdrawal of State regulatory programs (whether in whole or in part), 

when necessary, should not be minimized, and OSMRE continues to find that this 

process is prudent. However, this type of enforcement mechanism is not well-suited to 

smaller, non-imminent harm issues that may require a much shorter time frame to 

effectuate resolution. This final rule does not change the fact that imminent harm issues 

will continue to be addressed promptly through Federal enforcement, as appropriate, to 

protect public health and safety. OSMRE’s proposal to use early identification of State 

regulatory program issues and implement corrective action through action plans and to

use Federal enforcement for site-specific violations bridges the two enforcement 

mechanisms of the existing 30 CFR 733 process, as outlined in 30 U.S.C. 1271(b), and 

the TDN process, as outlined in 30 U.S.C. 1271(a). Development of a definition of “State 

regulatory program issue” and the use of compliance strategies and action plans to 

address State regulatory program issues before these issues develop into a more systemic, 
82 

and potentially more environmentally harmful program issue requiring substitution of 

Federal enforcement or withdrawal of a State program, is much more efficient, addresses 

issues earlier, and potentially reduces the need to invoke the rare remedies of existing 30 

CFR Part 733. The intermediate process adopted in this final rule should minimize or 

prevent any unnecessary burdens as OSMRE and the State regulatory authority promptly 

resolve the State regulatory program issue. 

Comment: A commenter supported the proposed addition at 30 CFR 733.5 of the definition of 

“action plan” and the explanation in the proposed rule that an “action plan” would be an 

efficient means of addressing State regulatory program issues. The commenter also favors the 

concept of identifying these issues early to avoid OSMRE exercising its oversight authority in 

the form of substitution or withdrawal of an approved State program. 

Response: OSMRE agrees with these comments because, overall, OSMRE’s final rule 

clarifications and enhancements at 30 CFR Parts 733 and 842 will enable OSMRE to more 

quickly identify whether an alleged violation requires more immediate resolution through 30 

CFR Part 842 and the potential issuance of a TDN or whether the problem should be more 

appropriately and effectively handled through the 30 CFR Part 733 process because it is a State 

regulatory program issue, as defined in this final rule, or a systemic problem within the 

approved program. This is a necessary distinction as set forth in SMCRA at 30 U.S.C. 1271(a) 

and (b). The latter statutory provision—30 U.S.C. 1271(b)—is aimed at correcting systemic, 

programmatic issues with State programs. Under this final rule, OSMRE will handle State 

regulatory program issues under the authority of section 1271(b). It is imperative for the 
83 

Federal regulations to comport with this distinction. One of the reasons OSMRE proposed to 

specifically define the term “State regulatory program issue” is that, after four decades of 

oversight enforcement, citizens have sometimes conflated the provisions of sections 1271(a) 

and 1271(b), resulting in frustration, duplication, and unnecessary complication of the TDN 

process, which was designed to quickly address on-the-ground impacts. Moreover, not properly 

distinguishing the actions available under 30 U.S.C. 1271 has resulted in inefficient use of 

Federal and State resources, as it frequently resulted in duplication of State and OSMRE efforts 

without any clear environmental benefit. OSMRE’s enhancements and clarifications in this final 

rule that distinguish features of the remedies for potential violations and State regulatory 

program issues will improve efficiency and effectiveness by appropriately narrowing the focus 

of 30 CFR Part 842 because, under this final rule, State regulatory program issues will be 

addressed using the “action plan” process in final 30 CFR 733.12. OSMRE’s “action plan” 

concept, which OSMRE is adopting in this final rule through the definition of “action plan” at 

30 CFR 733.5 and the regulatory provisions at 30 CFR 773.12(b), will enhance 

OSMRE’s ability to resolve programmatic issues as quickly as possible, resulting in better 

implementation of SMCRA. Furthermore, the addition of this enhancement will result in 

OSMRE taking action in advance of the rare remedies of withdrawal or substitution of an 

approved State program. 

Comment: Similar to other commenters, as discussed above, that recognize the value in 

the enhancement of the existing 30 CFR Part 733 process, a commenter also agrees with 

the proposed rule clarification that would allow programmatic concerns that OSMRE 

may identify involving a State regulatory authority to be handled outside the TDN 

process because programmatic concerns are more appropriately addressed under section 
84 

521(b) of SMCRA, 30 U.S.C. 1271(b), and the Federal regulations implementing that 

section. The commenter also supports OSMRE’s proposed, minor revision to the 

circumstances that constitute “good cause” at existing section 842.11(b)(1)(ii)(B)(4) and

OSMRE’s proposed clarification of what constitutes “reason to believe” at existing 

section 842.11(b)(2). The commenter supported the proposed, minor revisions to the 

“good cause” provisions at existing 30 CFR 842.11(b)(1)(ii)(B)(4)(ii) because, after 

OSMRE issues a TDN to a State regulatory authority, “good cause” for the State 

regulatory authority not taking appropriate action to cause an alleged violation to be 

corrected includes a State regulatory authority’s initiation of an investigation into the 

alleged violation, and a reasonable amount of time is required to complete that 

investigation before OSMRE initiates a Federal inspection. 

Response: OSMRE agrees with the commenter’s statements about how the proposed rule

would clarify the terms “reason to believe” and “good cause,” which should greatly 

reduce the number of situations when these terms, as implemented under the existing 

regulations, may have thwarted successful collaboration between OSMRE and the 

relevant State regulatory authority. OSMRE appreciates the commenter’s support for the 

provision that OSMRE is adopting in this final rule that allows initiation of an 

investigation into an alleged violation to establish good cause. Moreover, successful 

collaboration between OSMRE and the State regulatory authority is a lynchpin to 

successful enforcement of SMCRA and State regulatory programs and is necessary under 

SMCRA’s cooperative federalism framework. The provisions OSMRE is adopting in this 

final rule will enhance OSMRE’s ability to consult with the State regulatory authority to 
85 

efficiently and effectively solve problems. Implementation of OSMRE’s proposed 

changes, which OSMRE is adopting in this final rule, will result in OSMRE being able to 

act more quickly to differentiate between violations that need immediate attention, and 

systemic program problems that are appropriately addressed through the existing 30 CFR 

Part 733 process. In OSMRE’s experience, OSMRE has observed that the existing TDN 

process frequently results in a State regulatory authority and OSMRE engaging in 

unnecessary duplication of effort and processes rather that working cooperatively to 

quickly resolve problems. This is contrary to the intent of section 201(c)(12) of 

SMCRA, which requires OSMRE to “cooperate with...State regulatory authorities to 

minimize duplication of inspections, enforcement, and administration of [SMCRA].” 30 

USC 1211(c)(12). Furthermore, the implementation of the relevant clarifications in 

OSMRE’s proposed rule, which OSMRE is adopting in this final rule, is consistent with 

E.O. 13777 of February 24, 2017, 82 FR 12285 (March 1, 2017). E.O. 13777 is aimed at 

alleviating unnecessary regulatory burdens placed on the American people, and this final 

rule achieves that goal by removing unwarranted duplication of processes by OSMRE 

and State regulatory authorities. 

Comment: Unlike other commenters supporting the enhancement of 30 CFR Part 733, 

regarding OSMRE’s proposal to codify the process of early identification and corrective 

action to address State regulatory program issues as authorized by 30 U.S.C. 1271(b), a 

citizen commenter asserts that historically OSMRE had stronger oversight capabilities 

and that the proposed rule clarification is an attempt to redress OSMRE’s alleged loss of 

oversight authority to resolve problems with State regulatory enforcement and recapture 
86 

OSMRE oversight capabilities after State primacy is achieved. The citizen commenter 

expressed the concern that the 30 CFR Part 733 process is like using a club to fix what is 

wrong with State enforcement. As an alternative, the commenter suggests repealing 

OSMRE’s Directive REG-8 as a more effective tool than trying to enhance 30 CFR Part 

733. The commenter provided an example of the alleged slowness of a State regulatory

authority’s response to a recently filed citizen complaint. The commenter also asserts that 

OSMRE is attempting to address on-the-ground violations through the 30 CFR Part 733 

process, not through the TDN process. Notably, the citizen acknowledges that the 

rationale for citizens to notify both the State regulatory authority and OSMRE serves a 

positive purpose—essentially to ensure checks and balances resulting in more prompt 

resolution of issues. 

Response: SMCRA and the implementing regulations provide OSMRE with two primary 

tools to ensure that a State regulatory authority is enforcing its approved program 

appropriately. First, SMCRA provides that, in certain circumstances, OSMRE may issue 

a notice of violation or cessation order directly to a permittee in a primacy State; the 

circumstances in which OSMRE can exercise direct Federal enforcement are outlined in 

30 U.S.C. 1271(a) and 30 CFR Parts 842 and 843. One relevant example of OSMRE’s 

ability to engage in direct Federal enforcement is OSMRE performing a Federal 

inspection after determining that the State regulatory authority lacked good cause or did 

not take appropriate action to cause a violation to be corrected after OSMRE reviews the 

State regulatory authority’s response to a TDN. 30 U.S.C. 1271(a)(1) and 30 CFR 

842.11. The second tool OSMRE can use is outlined in 30 U.S.C. 1254(b), 1271(b), and 
87 

30 CFR Part 733. This tool allows OSMRE to address a failure of a State to effectively 

enforce all or part of its State program. Under these provisions, OSMRE may substitute 

Federal enforcement for all or part of a State regulatory program or withdraw approval of 

all or part of a State program. 

These two mechanisms are distinct and should not be conflated—one involves 

potential violations at specific sites, and one involves more systemic issues in State 

program enforcement. While it is true that, sometimes, a systemic issue with a State 

program can manifest itself in a violation at a site, it is also true that the TDN process is 

not the appropriate tool for resolving systemic, programmatic issues. Instead, the TDN 

process is designed to address alleged violations associated with individual permits. 

Importantly, however, section 733.12(d), as proposed and adopted in this final rule, 

provides that nothing in section 733.12 “prevents a State regulatory authority from taking 

direct enforcement action in accordance with its State regulatory program, or OSMRE 

from taking appropriate oversight enforcement action, in the event that a previously 

identified State regulatory program issue results in or may imminently result in a 

violation of the approved State program.” This provision will ensure that actual or 

imminent violations of an approved State program that often manifest in on-the-ground 

impacts, but may manifest by other means, are properly addressed even as OSMRE and a 

State regulatory authority are working to correct State regulatory program issues.

Despite the distinction between a site-specific violation and a systemic issue, 

OSMRE has received citizen complaints (i.e., the site-specific process) that allege a State 

regulatory program issue (i.e., a systemic issue). The regulatory revisions that OSMRE 

proposed, and that OSMRE is finalizing today, help to clarify the distinction between 
88 

when OSMRE will use specific oversight tools—such as direct enforcement through the 

TDN process as opposed to an action plan under revised section 733.12. Specifically, the 

revision to the description of “appropriate action” at 30 CFR 842.11(b)(1)(ii)(B)(3) 

clarifies that, if OSMRE issues a TDN, and the State responds that it is working with 

OSMRE to “immediately and jointly” initiate steps to correct the systemic State 

regulatory program issue under 30 CFR Part 733.12, that response will be considered 

appropriate action, and OSMRE will not continue with the direct Federal enforcement 

process and will not perform a Federal inspection. Instead, OSMRE and the State 

regulatory authority will work to develop an action plan as set forth in revised 30 CFR 

733.12 to address the underlying State regulatory program issue. To the extent that a 

systemic problem has resulted in a violation of the approved State program at a particular 

site, OSMRE will continue to use its direct Federal enforcement authority, including the 

TDN process, if warranted, to ensure such violation is corrected. This final rule serves to 

differentiate more accurately between the two distinct processes of oversight outlined in 

30 CFR Part 733 and 30 CFR Parts 842 and 843. OSMRE’s existing approach has 

demonstrated that a clarification of the distinction between these two processes is 

necessary to ensure that proper enforcement of SMCRA is achieved. 

OSMRE understands the commenter’s concern that 30 CFR 

842.11(b)(1)(ii)(B)(3) refers to 30 CFR Part 733, and OSMRE agrees with the 

commenter that, traditionally, using the existing Part 733 process to cause the Federal 

enforcement of State regulatory programs or the withdrawal of approval of State 

regulatory programs is fairly severe and has been rarely used. However, OSMRE also 

proposed, and is finalizing, the addition of section 733.5 that specifically defines “action 
89 

plan” and “State regulatory program issue” as used in final section 733.12, which 

specifically provides a process for OSMRE and a State regulatory authority to enter into 

an action plan to address systemic problems. The addition of the action plan process will 

allow OSMRE to more easily address, with the cooperation of the State regulatory 

authority, situations where an alleged violation can be traced to a systemic problem 

within an existing State regulatory program. This addition is consistent with SMCRA’s 

cooperative federalism approach, and OSMRE expects to use revised 30 CFR 733.12 

more frequently than it has traditionally used its authority to substitute Federal 

enforcement or withdraw State program approval because it will allow OSMRE to work 

with a State regulatory authority to cooperatively correct a State regulatory program 

issue. 

The commenter also suggested that repealing OSMRE’s Directive REG-8 would 

be a more effective tool for ensuring enforcement of SMCRA than the proposed revisions 

to 30 CFR Part 733. OSMRE’s Directive REG-8 is a detailed instructional document 

advising OSMRE staff on best practices for performing oversight consistent with 30 

U.S.C. 1271. Within Directive REG-8, OSMRE identifies two types of regular oversight 

activities it uses to ensure a State regulatory authority is effectively administering, 

implementing, maintaining, and enforcing its approved regulatory program consistent 

with 30 U.S.C. 1271(b) and 30 CFR Part 733. First, OSMRE prepares a report annually 

evaluating each State regulatory program. As set forth in Directive REG-8, each year, 

OSMRE uses certain fixed topics, such as off-site impacts and reclamation success, to 

evaluate the State regulatory authority. Each year, OSMRE also selects special topics for 

review. These special topics are chosen, in part, based on suggestions from the public. 
90 

Second, OSMRE conducts inspections of surface coal mining and reclamation operations 

as necessary to monitor and evaluate the administration of approved State programs in 

accordance with 30 CFR Part 842. This Directive is an internal document that OSMRE 

uses to ensure consistency across the bureau and to provide transparency to stakeholders 

on how OSMRE operates with respect to its routine evaluation of State regulatory 

authorities. Elimination of Directive REG-8 would increase the likelihood that various 

OSMRE offices would approach annual evaluation reports and oversight inspections 

differently, which could result in a lack of clarity for the public. For this reason, 

elimination of Directive REG-8 would not be a more effective method to implement 

change. 

The regulations, as finalized, better distinguish between the distinct oversight 

tools authorized by 30 U.S.C. 1271, by better explaining when OSMRE will use each 

tool. As such, the finalized regulations encourage efficiency and effectiveness when 

resolving alleged violations and State regulatory program issues by categorizing them 

appropriately and eliminating wasteful administrative processes that may hinder prompt 

resolution. 

OSMRE also acknowledges that citizens may determine that filing citizen 

complaints with both OSMRE and a State regulatory authority may be beneficial. 

However, in OSMRE’s experience, State regulatory authorities are typically in a better 

position to respond quickly and ensure that violations are corrected. OSMRE has long 

since acknowledged that “if citizens contact the State initially, most problems will be 

resolved satisfactorily without the need for intrusion by the Federal government.” 47 FR 

at 35628. That is why, since 1982, OSMRE has required that a citizen notify a State 
91 

regulatory authority “in writing, of the existence of the violation, condition or practice” 

before or simultaneously with notifying OSMRE of a request for Federal inspection. 

OSMRE still finds, as it did in 1982, that “this citizen notification requirement will 

enhance the protection of citizens by giving the State an earlier opportunity to act. 

Information from a person can be transmitted to a State regulatory authority quickly and 

accurately when a citizen communicates directly with the State.” Id. Thus, OSMRE has 

maintained the requirement in 30 CFR 842.12(a) to require a citizen, when requesting a 

Federal inspection, to inform OSMRE that the citizen has contacted the State regulatory 

authority. Additionally, OSMRE is finalizing the proposal that a citizen, when requesting 

a Federal inspection, also provide a basis for why the citizen asserts that the State 

regulatory authority has not taken action. This information will help OSMRE’s 

authorized representative better ascertain whether the citizen followed the regulation by 

notifying the State regulatory authority and what information may exist that would be 

useful in determining whether the authorized representative has reason to believe a 

violation exists.

Comment: One commenter opined that OSMRE needs to codify the process for the action 

plan. 

Response: Through this rulemaking, OSMRE is codifying the process for developing and 

using action plans to correct systemic State regulatory program issues. Currently, 

OSMRE uses a variation of this process as set forth in its Directives REG-8 and REG-23. 

As long as they are not arbitrary and capricious or contrary to SMCRA’s specific 

statutory language, section 201(c)(2) of SMCRA confers on the Secretary of the Interior 
92 

broad authority to “publish and promulgate such rules and regulations as may be 

necessary to carry out the purposes and provision of this Act.” 30 U.S.C 1211(c)(2); see 

also In re Permanent Surface Min. Regulation Litig., 653 F.2d 514, 523 (D.C. Cir. 1981) 

(en banc)); Nat’l Min. Ass’n v. U.S. Dep’t of the Interior, 105 F.3d 691, 695 (D.C. Cir. 

1997). 

Section 521(b) of SMCRA provides that “[w]henever on the basis of information 

available to him, the Secretary has reason to believe that violations of all or any part of an 

approved State program result from a failure of the State to enforce such State program or 

any part thereof effectively,” the Secretary must initiate a process that could result in 

OSMRE substituting Federal enforcement for all or part of a State regulatory program or 

withdrawing approval of all or part of a State regulatory program. 30 U.S.C. 1271(b); see 

also 30 U.S.C. 1254(a). This rulemaking is not contrary to these provisions of SMCRA 

because it allows OSMRE to work with a State to correct a systemic issue that OSMRE 

has identified with a State program. The mere fact that a State is willing to work with 

OSMRE in good faith to correct a problem shows that it is working to adequately 

implement, administer, enforce, and maintain its approved program. Logically then, 

OSMRE would not have “reason to believe” under 30 U.S.C. 1271(b) that the State is 

failing to enforce its program effectively. Thus, no statutory change is needed for 

OSMRE to promulgate this regulation. 

Comment: One commenter suggested specific changes to OSMRE’s proposed definition 

of “action plan” at 30 CFR 733.5 to mean a “detailed list of specific actions and the 

schedule OSMRE prepares to identify specific actions . . ..” The suggested definition of 
93 

“action plan” would also list examples of specific actions such as: compliance with what 

the commenter has classified as “Federal environmental regulations” that the commenter 

later defines as “Federal regulations,” but which actually consist of Federal 

environmental statutes, that include, among others, the Migratory Bird Treaty Act and the 

Clean Water Act; public notification and involvement; and dates in which State 

regulatory issues are to be resolved. The commenter requested that its proposed definition 

of “action plan” include “specific information on compliance measures including 

timelines, success criteria, and contingency plans in the event the success criteria are not 

reached.” The commenter also suggested the addition of new definitions at section 733.5 

for many of the terms included in its proposed definition of “action plan,” such as 

“adequate funding” and “public notification and involvement.” According to the 

commenter, these definitions would work in conjunction with the commenter’s suggested 

revisions to the term “action plan.” For instance, the commenter indicated that an 

“adequate funding” definition would be useful to ensure that the State regulatory 

authority has sufficient funds to carry out compliance and mitigation measures described 

in the action plan. Likewise, the commenter suggested that the addition of “public 

notification and involvement” would include a list of various public notification methods 

and techniques relating to notifying the public. 

Response: OSMRE disagrees that the appropriate location for the items suggested by the 

commenter is within the definitions at 30 CFR 733.5. OSMRE proposed most of the 

items suggested by the commenter at revised 30 CFR 733.12(b), which details what 

should be included in an action plan, such as the requirements that an action plan contain 
94 

specific dates and timelines of when the State regulatory program issue is to be resolved 

and contingency plans if success is not achieved. 

As to the suggested definition of “adequate funding,” State regulatory authorities

must demonstrate that they have “sufficient funding to enable the State to regulate 

surface coal mining and reclamation operations in accordance with the requirements of 

this Act.” 30 U.S.C. 1253(a)(3). OSMRE provides administration and enforcement grants 

to State regulatory programs annually. 30 U.S.C. 1295(a). In addition, OSMRE conducts 

an annual oversight review of each State program, and, if necessary, OSMRE can 

evaluate the sufficiency of a State regulatory authority’s funding, including the 

sufficiency of funding to carry out any action plans. For these reasons, OSMRE declines 

to add a definition of “adequate funding” to 30 CFR 733.5. 

OSMRE also disagrees with the need to include a definition for “public 

notification and involvement.” Any definition of this term in 30 CFR 733.5 would only 

be applicable to the sections of Part 733; OSMRE’s general definitions for its permanent 

regulatory program are found in 30 CFR 700.5 and 701.5 and neither contains a 

definition of public notification and involvement or a similar term. SMCRA contains 

many provisions related to public participation. See, e.g., W. Va. Highlands Conservancy, 

Inc. v. Norton, 343 F.3d at 242. SMCRA’s public notification and participation 

procedures have long been understood in the context of their usage and as part of each 

State’s approved regulatory program. Moreover, while OSMRE’s regulations do not 

provide for public involvement in the development of an action plan, revised 30 CFR 

733.12(c) requires each State regulatory program issue, and benchmarks related to the 

resolution of that issue, to be tracked in each State’s Annual Evaluation report, which is a 
95 

public document published on OSMRE’s website. Thus, the public will have access to 

any action plans that are developed. 

Comment: A commenter suggested that OSMRE add a definition in section 733.5 for 

“Federal regulations.” The suggested definition makes reference to several Federal 

environmental regulations with which a State regulatory authority must comply, 

including the Endangered Species Act of 1973, the Mitigatory Bird Treaty Act, the Clean 

Water Act, and the Archaeological Resources Protection Act. The commenter also 

suggests the addition of a definition in section 733.5 for “Listed species” and refers to the 

meaning of the term under the Endangered Species Act of 1973. The commenter also 

requested that OSMRE define “Migratory bird” and make reference to the meaning of the 

term under the Migratory Bird Treaty Act. The same commenter also suggested adding a 

sentence to the end of OSMRE’s definition of “State regulatory program issue.” The 

added sentence would state that “State regulatory program issue” would include “the 

potential failure to comply with or completely implement Federal regulations.” 

Response: These terms exist outside of SMCRA and are not part of this rulemaking 

effort. States must comply with all applicable Federal and State laws. For these reasons, 

OSMRE declines to include them in this rule. 

Comment: Similar to the comment above, the same commenter, representing an NGO, 

suggested that OSMRE list specific Federal regulations that could result in a State 

regulatory program issue and a subsequent action plan in the commenter’s proposed 
96 

definition of “Federal regulations.” This commenter also suggested rule changes to reflect 

inclusion in the action plan of any mitigation measures “that are necessary to return the 

affect[ed] area to pre-project conditions.” The commenter also suggested that OSMRE

include specific criteria to determine if the State regulatory program issue has been 

remedied or mitigated. 

Response: OSMRE declines to add a definition of “Federal regulations” to 30 CFR 733.5 

because the language at revised 30 CFR 733.12 is sufficiently broad to address whatever 

SMCRA program deficiency needs correction, and the regulation at final 30 CFR 

733.12(b)(1) requires the action plan to “be written with specificity to identify the State 

regulatory program issue . . . .” Thus, any SMCRA provision or implementing regulation 

that is the subject of the program issue will be identified at that time. As to the suggestion 

to require the return of the affected area to pre-project conditions, there is no provision in 

SMCRA that requires the return of a mine site to its pre-project condition. Instead, 

SMCRA requires permit applicants to reclaim the mine site as required by the Act and 

the State or Federal program. 30 U.S.C. 1260(b)(2). SMCRA further requires, for 

example, restoration of the land affected by mining “to a condition capable of supporting 

the uses which it was capable of supporting prior to any mining, or higher or better uses 

of which there is a reasonable likelihood . . . .” 30 U.S.C. 1265(b)(2) (emphasis added). 

The commenter’s suggestion is directly contrary to these provisions of SMCRA; 

therefore, OSMRE rejects this comment. 

OSMRE agrees with the commenter that specific criteria should be included as 

part of each action plan so that OSMRE can evaluate whether the problem has been 
97 

remedied. OSMRE, however, declines to adopt the specific language proposed by the 

commenter because, as proposed and finalized today, 30 CFR 733.12(b)(3)(iii) already 

includes language requiring actions plans to contain “[e]xplicit criteria for establishing 

when complete resolution [of the State regulatory program issue] will be achieved.” 

Comment: A commenter suggested that OSMRE not adopt “Early identification and 

corrective action to address State regulatory program issues” at proposed section 733.12 

and instead incorporate OSMRE’s suggested changes into existing OSMRE Directive 

REG-23. The commenters suggested varying degrees of positive and negative 

experiences with State-OSMRE action plans and their effectiveness.

Response: OSMRE declines to make this change. The enhanced 30 CFR Part 733 process 

that OSMRE is finalizing today is an important part of clarifying when OSMRE will use 

its authority under 30 U.S.C. 1271(a) and when it will use its authority under 30 U.S.C. 

1271(b). Codifying this procedure in the Federal regulations versus an internal guidance 

document will give OSMRE a transparent mechanism that has gone through public 

review and comment to resolve State regulatory program issues. OSMRE acknowledges 

the commenter’s varying experiences with action plans, but OSMRE is expecting to 

obtain positive results from this regulatory process as adopted in this final rule. 

Comment: A commenter made several specific suggestions to OSMRE’s wording in

proposed 30 CFR 733.12. These suggestions included wording related to actions taken by 

the Director to make some actions mandatory rather than discretionary and adding terms
98 

related to timing, such as “immediately” and “without delay.” The commenter also 

suggested reducing the specific timeframe in which State regulatory program issues need 

to be resolved to 30 days calendar days as opposed to the 180 days as proposed by 

OSMRE. 

Response: The purpose behind OSMRE’s proposed new 30 CFR 733.12 is to give 

OSMRE a new tool, the development of an “action plan,” to use to ensure that systemic 

issues with State regulatory programs are addressed in a measured, but no less 

accountable, manner. This tool provides OSMRE with another means to better manage 

situations where a SMCRA problem may exist but does not require immediate action 

under the TDN process, though it needs to be addressed in a shorter time frame than the 

traditional 733 process. An action plan is the vehicle to use in these situations. Adoption 

of the commenter’s suggested changes to proposed section 733.12 would result in the loss 

of flexibility, which is the purpose of this section; thus, OSMRE is not making the 

suggested changes. 

Comment: A group of commenters requested that OSMRE revise proposed section 

733.12(a)(2) to “fully reflect the flexibility in the Part 733 process and avoid any 

inference that OSM[RE] can skip steps in the process.” The commenters suggested that 

subparagraph (a)(2) should be revised as follows (commenters’ suggested language in 

italics): 

(a)(2) If the Director has reason to believe [as opposed to “concludes” in 

the proposed rule] that the State regulatory authority is not effectively 

implementing, administering, enforcing, or maintaining all or a portion of 

its State regulatory program, the Director may initiate proceedings to 
99 

substitute Federal enforcement of a State regulatory program or withdraw 

approval of a State regulatory program as provided in Part 733. 

Response: OSMRE declined to make the requested changes because final 30 CFR 733.12 

will allow for the development of action plans to resolve State regulatory program issues; 

in contrast, the complete 30 CFR Part 733 process is aimed at larger programmatic issues. 

An action plan is designed to prompt action before the full process for substituting 

Federal enforcement or withdrawing a part or whole State program occurs as outlined in 

existing 30 CFR Part 733 is necessary or initiated. To include the steps associated with 

existing section 733.12 would muddy the distinction between an action plan used to 

resolve regulatory program issues, which can be at the permit level, and a programmatic 

problem involving a deeper systemic issue. 

Comment: One commenter suggested revisions to proposed 30 CFR 733.12(b)(3) and (4) 

to specify that OSMRE notify the public when OSMRE identifies a State regulatory 

program issue by posting all relevant documents on OSMRE’s website. The commenter 

further requested that the regulation be revised to allow public review and comment on 

action plans before they are adopted. Finally, the commenter suggested revising the 

regulation to require OSMRE to post action plans and State regulatory authority Annual 

Evaluation reports on OSMRE’s website. 

Response: As addressed above, the proposed regulation at 30 CFR 733.12(c), which is 

adopted with modifications in this final rule, will provide that “[a]ll identified State 

regulatory program issues and any associated action plan must be tracked and reported in 

the applicable State regulatory authority’s Annual Evaluation report.” OSMRE already 
100 

posts Annual Evaluation reports on OSMRE’s website. See

https://www.odocs.osmre.gov/. OSMRE also intended to post any action plans developed 

between OSMRE and a State regulatory authority on OSMRE’s website. Therefore, 

OSMRE is revising the final rule to provide that OSMRE will make all Annual 

Evaluation reports available on OSMRE’s website and at the applicable OSMRE office. 

Thus, the public will be notified of each identified State regulatory program issue and 

associated action plan.

While public participation is an essential and routine part of many aspects of 

OSMRE’s regulatory program, public input in the development of an action plan would 

hamper OSMRE’s ability to timely address identified State regulatory program issues. 

Even though OSMRE’s process of developing an action plan does not include a public 

comment element, the inclusion of the term “any source” in revised 30 CFR 733.12(a)(1) 

makes it clear that a citizen, an organization, or any other source may provide 

information to OSMRE that could lead the Director to conclude that there may be a State 

regulatory program issue, which could result in an “action plan.” 

Comment: A commenter recommended the deletion of proposed section 733.12(d) 

because it would allow OSMRE to take an oversight enforcement action before a 

violation exists. The commenter referred to the portion of the proposed rule that read, 

“may imminently result in an on-the-ground violation.” Emphasis in original. 

Response: OSMRE declines to make this change. Under this final rule, OSMRE retains 

the right to issue a TDN to a State regulatory authority if a previously identified State 
101 

regulatory program issue has not been adequately addressed and results in an actual or 

imminent violation of the approved State program. In the final rule, as discussed in the 

section-by-section analysis, OSMRE has removed the reference to “on-the-ground 

violation” and replaced it with “a violation of the approved State program.” OSMRE 

recognizes that these violations often manifest as an on-the-ground impact, but OSMRE 

also recognizes that these violations may manifest by other means. For example, a 

permittee’s failure to submit required monitoring reports or submit annual certifications 

may be a site-specific violation of the approved State program. Specific to the comment, 

when OSMRE determines that a violation of the approved State program is imminent, it 

makes sense for OSMRE to take action to prevent actual problems. One of the primary 

purposes of SMCRA is to protect society and the environment from the harmful effects of 

surface coal mining operations, and OSMRE will be able to fulfill that purpose, in part, 

under section 733.12(d), which is being adopted in this final rule. 

I. Interrelationship of 30 CFR Part 733 and 30 CFR Part 842

Despite the distinct processes outlined in 30 U.S.C. 1271(a) and (b) for handling sitespecific violations and those violations of a programmatic nature, the reality of OSMRE 

enforcement is that, in practice, the nature of these violations may sometimes blur. This overlap 

may occur as a result of circumstances, stakeholders conflating the processes, and complicated 

issues associated with coal mining. Thus, although a multi-state governmental organization 

commenter found OSMRE’s inclusion of reference to one distinct process when discussing the 

other process to be “perplexing,” OSMRE’s experience—and other comments received on this 

topic—demonstrate that the interrelationship must be considered. 
102 

Comment: Similar to a comment discussed above in Section II., H., a group of 

commenters claimed that the use of the proposed 30 CFR Part 733 process to deal with 

any on-the-ground issue is inconsistent with SMCRA and will be more disruptive than 

using a TDN as directed by 30 CFR Part 842. This group of commenters also claimed

that a TDN is needed when a State regulatory authority fails to act on a violation. 

Response: OSMRE agrees with the commenters that existing 30 CFR 733.12, now 

redesignated as 30 CFR 733.13 in this final rule, and entitled, “Procedures for 

substituting Federal enforcement of State programs or withdrawing approval of State 

programs,” does not quickly effectuate change. However, OSMRE notes that this is a 

distinct process that must be implemented carefully and prudently. To bridge this gap, 

OSMRE proposed 30 CFR 733.12, which is being finalized today, as an early 

identification process for a prompter resolution of State regulatory program issues than 

under the existing regulations. This enhancement to the 30 CFR Part 733 process serves 

to identify issues before the issues warrant the rare remedies of substitution of Federal 

enforcement or withdrawal of an approved State program. As previously discussed, the 

development and use of action plans in 30 CFR 733.12, as finalized, will resolve State 

regulatory program issues. In addition, even when OSMRE and a State regulatory 

authority are engaged in an action plan process, OSMRE will still take appropriate 

enforcement actions to address imminent harm situations and will issue TDNs for actual 

or imminent violations of an approved State program, such as those that have on-theground impacts. State regulatory program issues may also result in a direct Federal 
103 

enforcement action under revised section 733.12(d) if the State regulatory authority does 

not address issues as outlined in the action plan and there is an actual or imminent 

violation of the approved State program. 

Comment: OSMRE received a number of comments on what constitutes a “State 

regulatory program issue.” A commenting group requested that OSMRE clearly express 

the delineation between a “violation” as used in section 521 of SMCRA and a “State 

regulatory program issue” as proposed in section 733.5 and redesignated as section 

733.12. The group further suggested that OSMRE consider adding language to the 

definition of State regulatory program issue that states that State regulatory program 

issues are not “violations” in the context of section 521(a)(1) of SMCRA. 

Response: OSMRE declines to make this requested delineation and associated change 

because OSMRE is afforded a degree of discretion to determine if something is a State 

regulatory program issue that should be addressed under the enhanced and finalized 30 

CFR Part 733 process or is site-specific with on-the-ground impacts that fall under the 

TDN process outlined in Part 842. Moreover, finalized section 733.12(d) continues to 

grant OSMRE the authority to take enforcement action to address an actual or imminent 

violation of an approved State program that often manifests as an on-the-ground impact. 

To do as the commenter suggests, i.e., the wholesale exclusion of State regulatory 

program issues from the TDN process, would create a regulatory loophole and be 

inconsistent with congressional intent. Further, as stated previously, what constitutes a 

violation is well understood by OSMRE, State regulatory authorities, and permittees. 
104 

Thus, no change to the definition of State regulatory program issue is needed. 

Comment: A commenter suggested that OSMRE overtly state that State regulatory 

program issues are not the basis for a TDN.

Response: While at least initially, a State regulatory program issue will not result in the 

issuance of a TDN, OSMRE is reserving the right to conduct Federal enforcement in 

accordance with final rule section 733.12(d) in the event that a State regulatory authority 

does not adhere to an action plan or if a State regulatory program issue results in an 

actual or imminent violation of the approved State program that often manifests as an onthe-ground impact. Therefore, OSMRE declines to make the overt statement that the 

commenter requested. 

Comment: A commenter group requested that OSMRE reconsider defining “appropriate 

action” for a “State regulatory program issue” under section 842.11 as an “appropriate 

action” in response to a TDN under 30 CFR Part 842. The group noted that OSMRE 

spent considerable time in preamble text delineating OSMRE’s authority for the TDN 

process under 30 U.S.C. 1271(a) and 30 CFR Part 842 and the 30 CFR 733 process as 

required by 30 U.S.C. 1271(b). The group further suggested that State regulatory program 

issues are not to be the basis for a TDN; therefore, the inclusion of an action plan to 

address a State regulatory program issue, as an element of the TDN process, seemed to 

conflate the apparent distinction OSMRE was making between the TDN and 30 CFR Part 

733 processes. 
105 

Response: As OSMRE understands the comment and associated request, OSMRE 

declines to accept this change. If a State regulatory authority, operating under final 

section 733.12, including development of an action plan, does not address the program 

issues identified in the action plan in the manner, and in accordance with the dates, 

outlined in the action plan, OSMRE may need to institute Federal enforcement to address 

the issue if there is an actual or imminent violation of the approved State program. The 

action plan process in final section 733.12 is not a vehicle to avoid Federal enforcement; 

instead, it is a tool to address State regulatory program issues promptly. 

Comment: Several commenters challenged the use of the 30 CFR Part 733 process, as it 

existed in the pre-existing regulations and with the enhancements finalized today, to 

address State regulatory program issues that result from State permitting deficiencies. 

Various commenters asserted that OSMRE has used TDNs (under 30 CFR Part 842) for 

years to address such State regulatory program issues. One commenter opined that an 

“enormous loophole” will be created by addressing all State regulatory program issues 

through the 30 CFR Part 733 process instead of through the TDN process. 

Response: OSMRE disagrees with these comments. OSMRE has acknowledged that, at 

various times, it has addressed State permitting issues through the TDN process. When it 

did so, OSMRE followed internal policies. Under this final rule, OSMRE is clarifying 

that it will not use the TDN process for alleged issues with a State regulatory authority’s 

implementation of its approved State program, unless there is an actual or imminent
106 

violation of the approved State program. In OSMRE’s experience, these violations often 

manifest in on-the-ground impacts. Instead, OSMRE will initially address such issues 

through the enhanced 30 CFR Part 733 process. After all, if a permittee obtained a permit 

from the State regulatory authority on the basis of an accurate and complete application, 

the permittee has initially fulfilled the requirements of SMCRA and the State regulatory 

program. See, e.g., Coal River Mountain Watch v. Republic Energy, LLC, No. 5:18-CV01449, 2019 WL 3798219, at *8 (S.D.W. Va. Aug. 12, 2019). However, as this final rule 

provides, even if OSMRE and the State regulatory authority are engaged in the State 

regulatory program issue or action plan processes, the State and OSMRE can still take 

appropriate enforcement actions if a violation of the approved State program has occurred 

or is imminent. By using action plans as an additional regulatory tool, the intent of 

sections 504 and 521 of SMCRA will be met without any damage to the environment or 

to the detriment of permittees. As described and contained in this final rule, action plans 

are regulatory instruments to accomplish specific objectives and have required timelines 

to resolve issues at hand. If a State regulatory program issue cannot be resolved through 

an action plan, the issue could result in a Federal substitution or takeover of a State 

regulatory program. The State regulatory program issue and action plan processes in this 

final rule, coupled with the TDN process, should ensure a more complete and timely 

enforcement of State regulatory programs. 

Comment: One commenter stated that violations emanating from “permit defects” should 

be handled through the TDN process set forth in 30 CFR Part 842 and not under the 

proposed early identification and corrective action process outlined in the enhancements 
107 

to 30 CFR Part 733 or through the existing 30 CFR Part 733 process. One commenter 

expressed concern that excluding the State regulatory authority from the TDN process 

undermines the balance between primacy and Federal oversight and the intent of 

Congress. Other commenters, pointing to past OSMRE decisions reviewing requests for 

Federal inspections related to State permitting decisions, requested that OSMRE clearly 

state that permit defects are totally excluded from the TDN process. 

Response: In general, OSMRE interprets the term “permit defect” to be a deficiency in a 

permit-related action taken by a State regulatory authority. The term does not appear in 

SMCRA and is not contained in the existing regulations. Rather, OSMRE has used the 

term in internal documents over the years, though OSMRE no longer uses the term in its 

existing Directive INE-35, entitled “Ten-Day Notices” and dated May 3, 2019. Section 

521(a)(1) of SMCRA refers to “reason to believe any person is in violation of any 

requirement of [SMCRA]....” As explained in the proposed rule, 85 FR at 28906-07, and 

in this final rule, “any person,” in the context of who can be in violation of SMCRA or a 

State regulatory program, does not include a State regulatory authority, unless it is acting 

as a permit holder. OSMRE acknowledges that the term “any person” also appears earlier 

in the same sentence of 30 U.S.C. 1271(a), but, in that context, SMCRA is referring to 

“any person” that provides information to the Secretary about possible violations; the 

term in that context is broader and can include a State regulatory authority. Under this 

final rule, OSMRE generally will not issue a TDN to a State regulatory authority for an 

identified State regulatory program issue. More specific to the context of this comment, 

under this final rule, a so-called “permit defect” will typically be handled as a State 
108 

regulatory program issue, unless there is an actual or imminent violation of the approved 

State program. OSMRE will continue to take an appropriate direct enforcement action 

under the TDN or imminent harm processes, even if the impact stems from an underlying 

State regulatory program issue. 

Under this final rule, OSMRE will follow the statutory delineation of sections 

521(a) (the site-specific TDN process at 30 CFR Part 842) and 521(b) (the State 

regulatory program issue 30 CFR Part 733 process) with respect to Federal enforcement. 

Although OSMRE has taken varying positions over the years, the best reading of 

SMCRA is that Congress intended the section 521(a) TDN process to be limited to 

violations at a specific site. In contrast, State regulatory program issues, which are more 

systemic in nature and could include alleged issues related to one or more permits issued 

by a State regulatory authority but do not result in site-specific violations of the approved 

State program, should be addressed under section 521(b) and the process outlined in 

finalized 30 CFR 733.12. In the proposed rule, OSMRE proposed to retain the ability to 

take Federal enforcement action if any issue being addressed as a State regulatory 

program issue, as outlined in redesignated 30 CFR 733.12, results in, or may imminently 

result in, on-the-ground violation. OSMRE is adopting this proposal in this final rule but 

has changed the terminology in section 733.12(b) to read, “in violation of the approved 

State program.” OSMRE has made this modification in response to public comments and 

because this change best addresses identified issues that are not specific to an individual 

site but are more systemic in nature. This is important because OSMRE will still take 

appropriate enforcement action for actual or imminent violations of an approved State 

program that often manifest as on-the-ground impacts even while OSMRE and a State 
109 

regulatory authority are pursuing corrective actions for State regulatory program issues. 

A multi-state governmental organization representing the natural resource and related 

environmental protection interests of its 27 member States agreed that OSMRE can 

“issue a TDN for an alleged permit defect that has resulted in an on-the-ground violation 

of a performance standard at a mine.” Under section 733.12 of this final rule, OSMRE 

will use any number of compliance strategies, including action plans when appropriate, to 

address regulatory program issues that result from State regulatory authority permitting 

actions while also preserving OSMRE’s ability to take enforcement action in the event 

that a previously identified State regulatory program issue results in or may imminently 

result in a violation of the approved State program. As a commenter pointed out, the 30 

CFR Part 733 process has historically been used after back and forth discussions between 

OSMRE and a State regulatory authority to identify and institute any necessary changes 

to a State program. The last resort in this situation, which is unaffected by this final rule, 

is for Federal substitution or withdrawal of all or part of a State regulatory program under 

the existing 30 CFR Part 733 process. In OSMRE’s view, the introduction of a definition 

for the phrase “State regulatory program issue,” combined with various compliance 

strategies, including action plans when appropriate, is an intermediary step between a 

Federal substitution or withdrawal of a State regulatory program under the 733 process 

and the section 521(a) TDN process. An action plan, with associated issue-specific time 

frames, serves as a beneficial and productive middle ground. It is important to keep the 

goals of regulatory oversight in mind: address issues as they arise while causing 

correction and minimization of on-the-ground impacts as soon as possible. The revisions 

to 30 CFR Parts 733 and 842 in this final rule achieve those goals by providing OSMRE 
110 

with more tools to more appropriately, efficiently, and quickly address the range of 

regulatory issues that arise. 

Comment: A commenter opined that the citizen complaint process contained in 30 CFR 

Part 842 should not be used to challenge state permitting issues under the guise of a 

“violation of the Act or program.” 

Response: As has been previously stated, Congress intended public participation in the 

implementation and enforcement of SMCRA and specifically added section 521(a) to the 

statute to account for that participation. The language of 30 U.S.C. 1271(a)(1) is clear 

that the TDN process should be used for a non-imminent harm situation when “the 

Secretary has reason to believe that any person is in violation of any requirement of this 

Act or any permit condition required by this Act . . . .” However, if the alleged violation 

satisfies the definition of “State regulatory program issue,” which could include issues 

related to State permitting, OSMRE will use the process set forth in 30 CFR 733.12, as 

finalized, to address the issue. If it is not clear, at the time the citizen complaint is 

received, whether the alleged violation is actually a State regulatory program issue, 

OSMRE, if it has the requisite “reason to believe,” will still issue a TDN to a State 

regulatory authority. If, after review of the information provided in the State’s response 

to the TDN, it turns out that the alleged violation is properly characterized as a State 

regulatory program issue, under revised 30 CFR 842.11(b)(1)(ii)(B)(3), the State will 

have taken appropriate action in response to the TDN by working with OSMRE to 

resolve the issue; thus, OSMRE will not conduct a Federal inspection. Of course, under 
111 

finalized 30 CFR 733.12(d), if the State regulatory program issue manifests itself as a 

violation of the approved State program that often results in an on-the-ground impact, 

OSMRE can still take direct enforcement action. 

Comment: A commenting group suggested that OSMRE revise the proposed definition of 

“State regulatory program issue” to exclude all programmatic and permitting issues from 

the TDN process found in 30 CFR Part 842. The group also offered language at specific 

sections in proposed 30 CFR Part 842 to effectuate this understanding. The suggested 

changes included adding a definition section to 30 CFR Part 842 that defines the 

following phrases and terms: “State regulatory program issue” and “violation” as used in 

30 CFR Parts 733 and 842. The commenter also suggested deleting the proposed 

revisions to the term “appropriate action” regarding joint inspections and to the term 

“good cause,” which references 30 CFR Part 733 State regulatory program issues. 

OSMRE infers from the comments that these suggested changes are presumably to 

indicate that State regulatory program issues are not appropriate subjects for a TDN. 

Response: OSMRE declines to make these changes because, as already stated in this 

preamble, under this final rule, OSMRE will not follow the process in 30 CFR 842.11 for 

State regulatory program issues, unless there is an actual or imminent violation of the 

approved State program. However, as noted above, sometimes OSMRE may initially 

issue a TDN for something that turns out to be a State regulatory program issue. 

J. Specific Responses to Other Comments Received About the Proposed Rule
112 

Comment: One commenter questioned the validity of OSMRE’s intention for clarifying 

the existing regulations. Specifically, this commenter alleged that despite OSMRE’s 

rationale, the true rationale behind the proposed rulemaking is to “reduce the workload of 

federal and state regulatory authorities due to lack of adequate funding to implement the 

Act as Congress intended it be done.”

Response: The commenter provided no evidence that the State regulatory authorities have 

insufficient funding to carry out their obligations under SMCRA. For this and many other 

reasons stated throughout the proposed rule and this final rule preamble, OSMRE disagrees with 

the commenter. To the contrary, this rulemaking is intended to add transparency to OSMRE’s 

oversight responsibilities; promote regulatory certainty for State regulatory authorities, regulated 

entities, and the public; enhance OSMRE’s relationship with the State regulatory authorities; 

reduce redundancy in inspection and enforcement; and streamline the process for notifying State 

regulatory authorities of possible violations and other issues. With respect to the commenter’s 

allegation that insufficient funding is provided to State regulatory authorities, OSMRE notes that 

Federal administration and enforcement grants are awarded to State regulatory authorities based, 

in part, on the anticipated workload, such as permitting and inspection, that is necessary for State 

regulatory authorities to administer and enforce their approved State programs under SMCRA. 

See 30 CFR Part 735 and OSMRE’s Federal Assistance Manual, Chapter 5-200, The Application 

Process for a Regulatory Grant. In the event that OSMRE has reason to believe that a State 

regulatory authority is not effectively implementing, administering, maintaining, or enforcing 

any part of its approved program—including not sufficiently funding the approve State program, 

OSMRE may initiate procedures for substituting Federal enforcement of State programs or 

withdrawing approval of State programs as detailed in redesignated 30 CFR 733.13. 
113 

Comment: A commenter expressed concern that the proposed change from “shall” to 

“will” in 30 CFR 842.11(b)(1) converts a previously mandatory duty into a discretionary 

duty. 

Response: As explained in the preamble to the proposed rule, the purpose of changing 

“shall” to “will” in 30 CFR 842.11(b)(1) was to clarify potential ambiguity with the word 

“shall.” 85 FR at 28907. As Justice Ginsburg explained in Gutierrez de Martinez v. 

Lamagna, “[t]hough ‘shall’ generally means ‘must,’ legal writers sometimes use, or 

misuse, ‘shall’ to mean ‘should,’ ‘will,’ or even ‘may.’” 515 U.S. 417, 432-33, n.9 

(1995). Even in an enforcement provision like this one, the use of the word “shall” does 

not necessarily give rise to a mandatory, nondiscretionary duty. See, e.g., Heckler v.

Chaney, 470 U.S. 821, 835 (1985); Sierra Club v. Jackson, 724 F. Supp. 2d 33, 38 n.l 

(D.D.C. 2010) (“the mandatory meaning of ‘shall’ has not been applied in cases 

involving administrative enforcement decisions”); FED. R. CIV. P. 1, Advisory Committee 

Notes (2007) (“The restyled rules minimize the use of inherently ambiguous words. For 

example, the word “shall” can mean “must,” “may,” or something else, depending on 

context. The potential for confusion is exacerbated by the fact that “shall” is no longer 

generally used in spoken or clearly written English.”). 

To guard against this potential ambiguity, OSMRE proposed to replace the word 

“shall” with the word “will” because “will” indicates an event (i.e., a Federal inspection) 

that is to occur in the future under specific circumstances (i.e., when the OSMRE 

authorized representative issues a TDN, and the State regulatory authority fails to 

respond with good cause or appropriate action). This word choice clarification was not 

intended to render the action at 30 CFR 842.11(b)(1) as anything but mandatory. 
114 

However, in consideration of the comment, OSMRE is adopting this suggestion to 

remove any ambiguity over the mandatory nature of the authorized representative’s 

responsibility to issue a TDN when “reason to believe” is formulated. However, instead 

of replacing “shall” with “will,” as proposed, OSMRE will substitute the word “shall” 

with “must” in order to more affirmatively communicate the mandatory requirement. The 

Federal Register Document Drafting Handbook provides, “use ‘must’ instead of ‘shall’ to 

impose a legal obligation to your reader.” Additionally, the Federal Plain Language 

Guidelines—referred to in the Federal Plain Writing Act of 2010—also direct Federal 

agencies to use “must” not “shall” to indicate requirements. 

Comment: A commenting group suggested that OSMRE incorporate regulatory language 

that defines the term “violation.” The commenter asserted that, in the TDN context, a 

violation only occurs in the context of on-the-ground violations of a State regulatory 

program, rather than to infractions of SMCRA generally. 

Response: OSMRE disagrees that changes to the existing regulations are necessary. The 

term “violation” has been used for greater than 40 years in SMCRA enforcement and has 

a common understanding that is not a subject of this rulemaking. However, as explained 

in the proposed rule, “[a] reasonable reading of section 521(a)(1) is that the referenced 

violations are those that permittees, and related entities or persons, commit in 

contravention of State regulatory programs. Therefore, within the context of section 

521(a) of SMCRA and the TDN regulations, the proposed rule would clarify that 

OSMRE will not send TDNs to State regulatory authorities based on allegations or other 
115 

information that indicates that a State regulatory authority may have taken an improper 

action under the State’s regulatory program.” 85 FR at 28907. OSMRE reasserts that 

position here. OSMRE did not propose to define the term violation and finds that such a 

definition is unnecessary. 

Further, OSMRE agrees that it will issue TDNs to State regulatory authorities

only when it has reason to believe there is a violation of the applicable State program, but 

this result is already clear in the existing regulations. In other words, when OSMRE is 

determining whether it has reason to believe that there is a violation of SMCRA in the 

TDN context, it makes that determination under the requirements of the approved State 

program. This longstanding practice does not require regulatory clarification. Of course, 

State programs must consist of elements that are no less stringent than SMCRA and no 

less effective than its implementing regulations. See 30 CFR 732.15(a) (a State program 

must be “in accordance with” SMCRA and “consistent with” the Federal regulations) and 

30 CFR 730.5 (defining “in accordance with” and “consistent with”). As such, if there 

would be a violation under SMCRA and the Federal regulations, a violation of an 

approved State program is also likely. However, if OSMRE discovers that a State 

program is not as stringent as SMCRA, it will take appropriate action, such as requiring a 

State program amendment under 30 CFR 732.17. With regard to the commenter’s 

reference to “on-the-ground violations,” that issue is discussed elsewhere in this final 

rule.

Comment: A commenter requested that OSMRE modify existing section 842.11 to ensure 

deference is given to the State regulatory authority when OSMRE is evaluating alleged 
116 

violations, especially those stemming from what the commenter characterizes as “permit 

defects.” While the commenter noted that the existing regulations contain an “arbitrary 

and capricious” standard, the commenter suggested that OSMRE and the Department’s 

Office of Hearings and Appeals (OHA) often ignore or pay lip service to the standard. 

The commenter suggested that OSMRE amend 30 CFR 842.11(b)(1)(ii)(B)(2) to make 

certain that deference is given to the State regulatory authority by adding a second 

sentence to read as follows: “[t]he authorized representative will accord the State 

regulatory authority substantial deference in evaluating whether the response is arbitrary 

capricious or an abuse of discretion under the State program.”

Response: As explained above, under this final rule, OSMRE will not address problems 

with a State-issued permit through the TDN process, unless there is an actual or imminent 

violation of the approved State program. OSMRE agrees with the commenter that 

OSMRE should afford substantial deference to State regulatory authorities during the 

TDN process. This is a practice that OSMRE has routinely followed in conformity with 

the various provisions of SMCRA relevant to this issue. Under the “arbitrary, capricious, 

or an abuse of discretion” standard in the existing regulations, which is not affected by 

this final rule, OSMRE already affords substantial deference to State regulatory 

authorities that the commenter seeks, which is consistent with SMCRA’s cooperative 

federalism model. After all, in primacy States, the State is the primary SMCRA 

regulatory authority, and OSMRE’s role is one of oversight. Because the existing 

regulations already recognize the States’ significant role in enforcing SMCRA, and 

OSMRE is appropriately deferential to the States, no change to the regulations is 
117 

necessary to accomplish the commenter’s goal. OSMRE also notes that, contrary to the 

commenter’s assertion, neither OHA nor OSMRE is free to ignore or merely pay lip 

service to requirements in duly promulgated regulations. Likewise, OSMRE 

acknowledges that it must follow applicable provisions of SMCRA and relevant 

administrative and judicial case law. OSMRE already recognizes and applies the requisite 

deference owed to State regulatory authorities during the TDN process, and the TDN 

regulations and OSMRE’s practice are fully in accord with SMCRA and court decisions. 

Comment: A commenter questioned why OSMRE proposed changes to four of the five 

examples of what can constitute “good cause” at 30 CFR 842.11(b)(1)(ii)(B)(4) and made 

no changes to one of the five elements. The commenter also questioned OSMRE’s 

proposal to include the term “demonstrates” in subparagraphs (iii) and (iv) because it did 

not appear to change the meaning of the provisions. 

Response: OSMRE has found it difficult to substantiate State regulatory authority’s

jurisdictional claims under existing subparagraph (iii) and claims of preclusion to act 

under existing subparagraph (iv). OSMRE does not intend to change the meaning of these 

provisions or its interpretation of what constitutes good cause for not taking an action 

under these subparagraphs. OSMRE added “demonstrate” to these subparagraphs of 

section 842.11(b)(1)(ii)(B)(4) to ask State regulatory authorities to provide OSMRE with 

a measure of certainty for their claims of good cause for not taking an action to correct a 

violation. 
118 

Comment: One commenter indicated general support for the proposed clarifications of 

“good cause” as set forth in 30 CFR 842.11(b)(1)(ii)(B)(4). However, the commenter 

recommended that the provisions related to good cause could be made more effective 

with the addition of language requiring the State regulatory authority to demonstrate it 

has “dedicated all resources necessary to complete the investigation as soon as possible.” 

Response: OSMRE understands that the commenter is requesting a defined time frame 

for the State regulatory authority to complete an investigation into a possible violation as 

outlined in 30 CFR 842.11(b)(1)(ii)(B)(4)(ii) and also is requesting that the State 

regulatory authority make an affirmative showing that all resources necessary are used to 

complete the investigation. OSMRE does not accept the suggestion made by the 

commenter as it would place general, unreasonable expectations on the State regulatory 

authority to complete often complicated and fact-specific investigations. To be clear, the 

existing regulations require that when a State regulatory authority requires additional 

time to analyze the allegations in a TDN, this must be performed in a “reasonable and 

specified additional time.” The proposed rule, as finalized today, also contains this limit 

on a State regulatory authority’s investigation time frame and takes a further step to 

ensure expeditious resolution of possible violations. In an effort to express the urgency of 

promptly resolving alleged violations, the final rule grants the OSMRE authorized 

representative discretion to “determine how long the State regulatory authority should 

reasonably be given to complete its investigation...and [the authorized representative] 

will communicate to the State regulatory authority the date by which the investigation 

must be completed.” At the conclusion of the specified time, the OSMRE authorized 
119 

representative will re-evaluate the State regulatory authority’s response. This reflects an 

appropriate balance of the State regulatory authority’s knowledge of specific issues, the 

need to thoroughly gather information necessary to evaluate a possible violation, and the 

prompt resolution of possible violations. Furthermore, it does not place unreasonable 

expectations on State regulatory authorities to dedicate “all resources” to one issue.

Comment: One commenter suggested revisions to the “good cause” provisions in 

proposed section 842.11(b)(1)(ii)(B)(4)(iv) to address what the commenter has 

characterized as a shortcoming in the existing and proposed language that was identified

during recent coal company bankruptcy proceedings. According to the commenter, 

during bankruptcy proceedings, evidence was discovered of collusion between State 

officials and coal companies that were self-bonded. The commenter alleged that either 

through this alleged collusion, or by direct action of the State officials, judicial action was 

taken to shield these companies from complying with the requirements of 30 CFR 

800.16(e) (General terms and conditions of bond) and 30 CFR 800.23(g) (Self-bonding). 

The commenter surmised that these alleged actions could be prevented by revising 

section 842.11(b)(1)(ii)(B)(4)(iv) to include the requirement that the State regulatory 

authority “demonstrate that no state official has coordinated with the mining company 

and or acted independently to secure an administrative review body or court of competent 

jurisdiction to preclude the State regulatory authority from taking action on the 

violation.” 

Response: OSMRE declines to accept this suggestion because this proposed revision to 

the good cause requirements of 30 CFR Part 842 is outside the scope of this rulemaking 
120 

as OSMRE did not propose to substantively change the requirement in section

842.11(b)(1)(ii)(B)(4)(iv). OSMRE notes that if OSMRE discovers, at any time, that a 

State regulatory authority is failing to adequately implement, administer, maintain, or 

enforce a part or all of a State program, including enforcing the general bonding and selfbonding requirements established in 30 U.S.C. 1259 and 30 CFR Part 800, OSMRE may 

initiate the existing 30 CFR Part 733 process in accordance with 30 U.S.C. 1271(b). 

Comment: A multi-state governmental organization that characterizes itself as supporting 

the natural resource and related environmental protection and mine safety and health 

interests of its 27 member States suggested that OSMRE develop a more thorough 

discussion of why the proposed regulations at 30 CFR Parts 733 and 842 represent 

OSMRE’s interpretation of SMCRA with respect to the procedures for substituting 

Federal enforcement of State programs or withdrawing approval of Sate programs and the 

TDN process. 

Response: OSMRE has already discussed the clarifying changes to 30 CFR Parts 733 and 842 in 

the preamble to the proposed rule (85 FR 28904). These two rule sections have also been the 

subject of several previous rulemakings and associated Federal Register notices. See, e.g., 44 

FR 14902 (March 13, 1979), 47 FR 35620 (Aug. 16, 1982), 52 FR 34050 (Sept. 9, 1987), and 53 

FR 26728 (July 14, 1988). Additionally, OSMRE has expanded upon the rationale for its

clarifying changes, above. 

Comment: A coal industry group comprised of several companies in an Appalachian 

Basin-based coal State offered its support for OSMRE’s proposed clarification that 
121 

OSMRE will not send TDNs to State regulatory authorities based on allegations that the 

State regulatory authority itself has acted improperly under the approved State program. 

Response: As discussed briefly above, OSMRE agrees with the commenter’s 

observations. Specifically, the commenter accurately recognizes that within the context of 

section 521(a)(1) of SMCRA, a State regulatory authority should not be considered “any 

person” who may be “in violation of any requirement of this Act.” 30 U.S.C. 1271(a)(1). 

As discussed in the proposed rule, but not commented upon, in this context, “any person” 

does not include OSMRE, State regulatory authorities, or employees or agents thereof, 

unless they are acting as permit holders. To be clear, OSMRE will not issue a TDN to a 

State regulatory authority for an alleged violation by the State regulatory authority, unless 

the State regulatory authority is acting as a permit holder because it is operating a surface 

coal mining operation or the State regulatory authority is standing in the shoes of the 

permittee due to bond forfeiture or any other unforeseen reason. This interpretation is 

consistent with the plain language of 30 U.S.C. 1271(a) that differentiates between “any 

person” providing information and “any person [that] is in violation of any requirement 

of this Act....” However, OSMRE cautions that this interpretation does nothing to 

diminish OSMRE’s authority to act if OSMRE becomes aware that there is a State 

regulatory program issue. Specifically, if OSMRE becomes aware that there is a State 

regulatory program issue that undermines a State regulatory authority’s effective 

administration, maintenance, implementation, or enforcement of its State regulatory 

program, even with respect to a single operation, OSMRE may address the issue 

programmatically under the enhanced 30 CFR Part 733 that is being finalized in this 
122 

rulemaking while also taking enforcement action as prescribed by 30 U.S.C. 1271(a)(1) 

when there is a violation of the approved State program. 

Comment: A citizen commenter suggested that OSMRE should define the terms “readily 

available information” and “effective documentation.” 

Response: Definitions for these two terms are unnecessary as the terms have generally 

accepted definitions and no specialized technical meaning in this rule. For example, 

“readily” is defined as “without hesitating; without much difficulty.” Readily, Merriam 

Webster Online Dictionary, available at merriam-webster.com/dictionary/readily (last 

accessed August 4, 2020). Moreover, as OSMRE explained in the preamble to the 

proposed rule, OSMRE considers “any information that is accessible without 

unreasonable delay” to be “readily available information.” 85 FR at 28907. Furthermore, 

OSMRE’s authorized representative needs the flexibility to use his or her best 

professional judgment to determine what information is readily available based on the 

specific facts of each situation. 

Similarly, it is also not necessary for OSMRE to define “effective documentation” 

as it is used in section 842.11(b)(2) to describe the type of information referenced in 43 

U.S.C. 1271(a)(1) that a complainant should submit to OSMRE to show a possible 

violation because determining what constitutes “simple and effective documentation” 

will be a fact-specific consideration that OSMRE will take into account in formulating 

reason to believe on a case-by-case basis. Congress, when enacting SMCRA, recognized 

that OSMRE’s authorized representative will consider “a snapshot of an operation in 
123 

violation or other simple and effective documentation of a violation” in order to formulate

reason to believe before issuing a TDN. H.R. REP. No. 95-128, at 129 (April 22, 1977) 

(emphasis added). As used in the final rule at 30 CFR 842.11(b)(2), OSMRE adopts the 

language proffered by Congress; thus, OSMRE’s authorized representative will be 

assessing both whether the complainant has submitted “simple and effective 

documentation” and whether “facts that are otherwise known to the authorized 

representative” constitute simple and effective documentation before formulating whether 

there is reason to believe a violation exists. However, that simple and effective 

documentation can also come from any other readily available source, in addition to the 

complainant. This may include, for example, information in OSMRE’s files, from the 

public domain, provided by a State regulatory authority, or in a citizen complaint. 

Depending on the alleged violation, simple and effective documentation could also be a 

photograph of the alleged violation, boundary identifiers, water monitoring reports, or 

any other information readily available to OSMRE’s authorized representative. 

Comment: A citizen commenter stated that the proposed changes to section 842.11(b)(2) 

coupled with the “new proposed ‘reason to believe’ standard” will make it more likely 

that legitimate complaints will be rejected because the complaint may not include “simple 

and effective documentation.” Further, the commenter reasoned that the term “simple and 

effective documentation” is a new term that is undefined and that will place an 

unreasonable burden on citizens seeking to file a citizen complaint.
124 

Response: OSMRE disagrees with this comment and notes that section 842.11(b)(2) 

states the authorized representative will be able to formulate reason to believe “if the 

facts that a complainant alleges, or facts that are otherwise known to the authorized 

representative, constitute simple and effective documentation of the alleged violation, 

condition, or practice.” (Emphasis added). The commenter has missed the portion of this 

provision that allows the authorized representative to rely on facts that are otherwise 

known to the authorized representative that may constitute simple and effective 

documentation, in addition to the facts that the complainant submits. Moreover, as 

OSMRE noted in response to a previous comment, the concept of “simple and effective 

documentation” was first introduced in 1977 when SMCRA was being drafted by 

Congress. This phrase was used to describe the type of information that could be used to 

document a possible violation. OSMRE is not imposing a new requirement or a burden 

on citizens when filing a citizen complaint and views this standard as a low bar 

describing the nature of documentation that may be used to show that a violation has 

taken or is taking place. In addition, OSMRE has clarified in this final rule that it will 

consider any “simple and effective documentation”—including readily available 

information from the State regulatory authority or any other source—when formulating 

reason to believe. 

Comment: OSMRE received several comments suggesting that OSMRE does not have 

statutory authority to issue a notice of violation (NOV) in a primacy State due to the 

construction and relationship between sections 504(b) and 521(b) of SMCRA. One of 

these commenters further suggested that once a State program is approved, and the State 
125 

earns primacy, the approved State program becomes the operative law; therefore, Federal 

actions against a State permittee amount to a Federal takeover of the approved State 

program. Another one of these commenters echoed the same sentiment and added that 

Federal oversight in a primacy State created an unfair playing field relative to States that 

have not achieved primacy and therefore have only Federal enforcement. A commenter 

further suggested that OSMRE repeal the regulation authorizing NOVs in primacy states 

(30 CFR 843.12) and initiate a rulemaking to do so. 

Response: The issue of OSMRE’s statutory authority to issue NOVs is well-settled, and 

nothing in OSMRE’s proposed rule suggested that OSMRE was reconsidering whether it

has authority to issue NOVs in primacy States. See 48 FR 9199 (Mar. 3, 1983) (“[u]pon 

examination of the issue, the Department has concluded that the regulation contained at 

30 CFR 843.12(a)(2) was properly and lawfully promulgated; therefore there is no need 

to reconsider the issue.”); see also 44 FR 14902. Over thirty years ago, OSMRE 

considered a rulemaking petition, which sought the repeal of all of the regulations 

“authorizing Federal notices of violation in States with approved regulatory programs . . 

..” 52 FR at 21598. OSMRE denied this petition. 52 FR at 21601 (“After careful 

consideration of the Act, the legislative history, and public comments. . . , OSMRE 

determined that it has the authority to issue Federal NOV's in primacy States.”); see also 

Nat’l Min. Ass’n v. U.S. Dep’t of Interior, 70 F.3d 1345, 1353 (D.C. Cir. 1995) 

(upholding OSMRE’s rulemaking petition denial). Given OSMRE’s longstanding 

interpretation of its authority and the lack of anything in the proposed rule that would 

indicate a change to this position, OSMRE considers this comment to be outside the 
126 

scope of this rulemaking, and OSMRE is not adopting the suggestions made by these 

commenters.

Comment: One commenter suggested that OSMRE repeal 30 CFR 842.15(d) pertaining 

to formal appeals to OHA of the Director’s informal review of an inspector’s decision in 

response to a request for a Federal inspection. The commenter opined that SMCRA 

authorizes informal review of an authorized representative’s decision to not inspect or not 

take enforcement action, but SMCRA does not authorize formal appeals, as the existing 

OSMRE regulations authorize. The commenter further stated that these “formal” appeals 

of OSMRE decisions not to inspect or enforce often languish for years while being 

resolved through the administrative litigation process of the OHA and the appellate 

administrative board, the Interior Board of Land and Appeals. In support of this proposed 

revision, the commenter cited efficiency and points out that long resolution times 

unnecessarily prolong uncertainty for operators and State regulatory authorities. 

Response: OSMRE did not propose any revisions to 30 CFR 842.15 in response to this 

comment. OSMRE considers this comment to be outside the scope of this rulemaking and 

is not making any changes to the final rule as a result. Changes to the administrative 

review process for informal review decisions were neither proposed by OSMRE in the 

proposed rule nor would be a logical outgrowth of the current rulemaking effort. 

Therefore, OSMRE will not be addressing this comment or including the provisions 

proposed by the commenter in this final rule. 
127 

Comment: One individual commenter, representing the interests of a citizens’ group, cites data 

from the U.S. Energy Information Administration (EIA) that predicts a 25 percent decline in 

domestic coal production from 2019 through 2020 and the “financial demise of the coal 

industry” as a rationale for why OSMRE should maintain appropriate regulations to safeguard 

and protect the environment from “careless mining endeavors.” 

Response: OSMRE agrees that it should maintain appropriate regulations to safeguard the 

environment and asserts that this final rule and the other Federal regulations accomplish that 

goal. Fundamentally, this final rule will enhance OSMRE’s and the State regulatory authorities’ 

ability to adequately administer and enforce SMCRA. To clarify, EIA estimates that U.S. coal 

consumption will decrease by 26 percent in 2020 and increase by 20 percent in 2021. Further, 

EIA estimates that coal production in 2020 will decrease by 29 percent from 2019 levels. See

U.S. Energy Information Administration, “Short-Term Energy Outlook,” available at

https://www.eia.gov/outlooks/steo/ (last accessed August 10, 2020). OSMRE’s obligations under 

SMCRA are informed by its purposes outlined at 30 U.S.C. 1202. SMCRA’s purposes are not 

dependent upon the amount of coal consumption or production. Regardless of the amount of 

consumption or production of coal, OSMRE’s oversight and enforcement responsibilities remain 

the same. Therefore, the estimated annual variance in coal production does not impact OSMRE’s 

statutory obligations, which include, most relevant to this final rule, “administer[ing] the 

programs for controlling surface coal mining operations...” and “cooperat[ing] with other 

Federal agencies and State regulatory authorities to minimize duplication of inspections, 

enforcement, and administration of [SMCRA].” See 30 U.S.C. 1211(c)(1) and (12). This final 

rule will enhance administration and enforcement of SMCRA and State regulatory programs and 
128 

also enhance cooperation between OSMRE and the State regulatory authorities. 

Further, the commenter’s recognition of decreased coal production, at least in the short 

term, supports the need for this rulemaking. As coal production decreases, coal mine operators 

may revise their mine plans or permanently cease operations and either commence final 

reclamation or, in the event of financial insolvency, forfeit their reclamation bond. In such cases, 

State regulatory authority workloads may initially increase due to higher volumes of permit 

revisions, inspection and enforcement activities, bond releases, and potential actions surrounding 

permit revocation and bond forfeiture. Due to the structure of the SMCRA program, the State 

regulatory authority will have permitting and inspection obligations on every mine site for a 

minimum of five to ten years after coal production ceases. Only after final bond release may a 

permit be terminated and the State regulatory authority relieved of its responsibilities. Federal 

administration and enforcement grants awarded by OSMRE to State regulatory authorities are 

based, in part, on the anticipated workload, such as permitting and inspection, that is necessary 

for State regulatory authorities to administer and enforce their approved State programs under 

SMCRA. See 30 CFR Part 735 and OSMRE’s Federal Assistance Manual, Chapter 5-200, The 

Application Process for a Regulatory Grant. As production decreases, permitting and associated 

costs may decrease over time; thus, State regulatory authorities may not receive the same level of 

funding as they do currently. This highlights the need to be more efficient with the resources that 

are available. This final rule should help to increase efficiency in inspections and enforcement. 

Comment: Several commenters questioned the authority of Casey Hammond, serving in his 

capacity as Principal Deputy Assistant Secretary, to issue the proposed rulemaking. 
129 

Response: Mr. Hammond acted within the authority of the Assistant Secretary for Land and 

Minerals Management (ASLM) authority that was properly delegated to him when signing the 

proposed rulemaking. Reorganization Plan No. 3 of 1950 provides that “all functions of all other 

officers of the Department of the Interior . . ..” are “transferred to the Secretary of the Interior. . 

..” 64 Stat. 1262 at § 1. The Secretary may then “make such provisions as he shall deem 

appropriate authorizing the performance by any other officer, or by any agency or employee, of 

the Department of the Interior of any function of the Secretary, including any function 

transferred to the Secretary by the provisions of this reorganization plan.” Id. at § 2. Indeed, 

Congress codified and affirmed the Secretary’s ability to transfer “all” functions to “any” officer 

or employee of the Department in 1984 via Public Law No. 98-532. 

SMCRA authorizes the Secretary to promulgate rules and regulations necessary to carry 

out the Act. See 30 U.S.C. 1211(c)(2). The Secretary has delegated this responsibility to the 

ASLM. 209 Departmental Manual (DM) 7.1.A. The Secretary delegated “all functions, duties, 

and responsibilities” of the ASLM to Mr. Hammond via Secretary’s Order 3345 Amendment No. 

32 on May 5, 2020, two weeks before he signed the proposed rulemaking. This delegation of 

authority excludes functions and duties that are required by statute or regulation to be performed 

only by the ASLM. The signing of the proposed rulemaking is not such an exclusive function or 

duty. Although the Secretary and OSMRE Director also have such authority (216 DM 1.1.B), 

that does not divest the ASLM from his properly delegated authority. 200 DM 1.9. Therefore, 

Mr. Hammond properly exercised the delegated authority of the Secretary in signing this 

proposed rulemaking. Mr. Hammond continues to exercise the delegable, non-exclusive 

functions, duties, and responsibilities of the ASLM pursuant to a Succession Order signed by the 

Secretary (latest version signed June 3, 2020). 
130 

Comment: One citizens’ group representing many national citizen organizations and “thousands 

of individuals” across the country contends that the proposed rule required an Environmental 

Impact Statement (EIS) or Environmental Assessment (EA) to comply with the National 

Environmental Policy Act (NEPA). 42 U.S.C. 4321 et seq. In support of this assertion, the 

citizens’ group states that the proposed rule would result in unabated violations due to an 

alleged delay in TDN issuance.

Response: We disagree with the premise of this comment. This final rule is designed to allow a 

State regulatory authority and OSMRE the ability to more efficiently address alleged violations 

at surface coal mining operations. As stated in the proposed rule, the final rule will allow a State 

regulatory authority to investigate an alleged violation before needing to divert resources away 

to respond to a TDN. 85 FR at 28907. As a result, any violations should be abated more quickly

and more efficiently than under the existing rules. 

Moreover, as discussed further in “Procedural Determinations” below, OSMRE has reevaluated its compliance with NEPA after reviewing the comments received on the proposed 

rule. OSMRE still finds that this rulemaking falls within the Department’s categorical exclusion 

at 43 CFR 46.210(i) because the clarifications of 30 CFR Part 842 and enhancement of 30 CFR 

Part 733 are of an administrative and procedural nature. Fundamentally, this final rule clarifies 

aspects of the procedures that OSMRE uses to evaluate citizen complaints to determine if it 

should issue a TDN and adds procedures for State regulatory authorities to take corrective

action of State regulatory program issues. However, as explained above in response to other 

comments, none of these clarifications or enhancements materially alters OSMRE’s 

enforcement of SMCRA in primacy states. Therefore, this rulemaking falls within this 
131 

categorical exclusion. In addition, no extraordinary circumstances exist that would prevent 

OSMRE from using the categorical exclusion. 43 CFR 46.215. 

It is true that the last time OSMRE proposed to substantively revise the TDN 

regulations, it did not use a categorical exclusion but instead prepared an environmental 

assessment. See 1987 Environmental Assessment entitled, U.S. Department of the 

Interior, Office of Surface Mining Reclamation and Enforcement, Environmental 

Assessment for Amending Rules in 30 CFR 842.11 and 843.12 on Evaluation of State 

Responses to Ten-Day-Notices. Similar to OSMRE’s final rule today, the 1988 final rule 

was aimed at improving cooperative federalism. Specifically, in the 1987 environmental 

assessment, OSMRE found, “[t]o the extent that the revised procedures foster a better 

working relationship between OSMRE and the States in implementing SMCRA, the 

environmental consequences of the proposed action should be positive.” Moreover, in 

the 1987 environmental assessment, OSMRE concluded that no significant environmental 

impacts were associated with the action. Id. This past analysis supports OSMRE’s 

determination that no extraordinary circumstances apply that would preclude OSMRE’s 

use of an applicable categorial exclusion. It also is consistent with the Department’s goals 

of streamlining its NEPA reviews. See, e.g., Secretarial Order No. 3355 (Aug. 31, 2017); 

see also Council for Environmental Quality, Memorandum, Establishing, Applying, and 

Revising Categorial Exclusions under the National Environmental Policy Act (Nov. 23, 

2010), at 2-3 (“[C]ategorical exclusions provide an efficient tool to complete the NEPA 

environmental review process for proposals that normally do not require more resourceintensive EAs or EISs. The use of categorial exclusions can reduce paperwork and delay, 

so that EAs or EISs are targeted toward proposed actions that truly have the potential to 
132 

cause significant environmental effects.”). 

V. Discussion of the Final Rule and Section-by-Section Analysis

This part of the preamble provides a section-by-section analysis of the regulations

promulgated in this final rule. 

PART 733—EARLY IDENTIFICATION OF CORRECTIVE ACTION, 

MAINTENANCE OF STATE PROGRAMS, PROCEDURES FOR 

SUBSTITUTING FEDERAL ENFORCEMENT OF STATE PROGRAMS, AND 

WITHDRAWING APPROVAL OF STATE PROGRAMS

OSMRE proposed to revise the title for this Part and to redesignate certain 

sections of the existing Part to accommodate the addition of a definitional section at 30 

CFR 733.5 and OSMRE’s proposed enhancement to the 30 CFR Part 733 process—a 

new proposed section 733.12, entitled, “Early identification and corrective action to 

address State regulatory program issues.” 

The existing regulations at 30 CFR Part 733 establish requirements for the maintenance 

of State programs and the procedures for substituting Federal enforcement of State programs and 

withdrawing approval of State programs. Citing OSMRE’s 40-plus years of implementing and 

overseeing SMCRA and State regulatory programs, OSMRE proposed to add an enhancement to 

this Part—the codification of an existing OSMRE internal policy aimed at early identification of 

and corrective action to address State regulatory program issues. When formulating the proposed 

rule, OSMRE reasoned that if issues remain unaddressed, these issues may result in a State 

regulatory authority’s ineffective implementation, administration, enforcement, or maintenance 

of its State regulatory program. To prevent this from occurring and to encourage a more 

complete and more efficient implementation of SMCRA, OSMRE proposed to enhance existing 

30 CFR Part 733 by adding section 733.5 that would define the terms “action plan” and “State
133 

regulatory program issue.” Additionally, OSMRE proposed to redesignate existing section 

733.12 as section 733.13, redesignate existing section 733.13 as section 733.14, and add a new 

section 733.12 to address how early identification of and corrective action for State regulatory 

program issues can be achieved. Further, in the sections proposed to be added or revised 

throughout 30 CFR Part 733, OSMRE proposed to add the term “regulatory” between the terms 

“State” and “program” for consistency purposes. As discussed in the specific sections below, all 

of these changes are not substantive and are made for the purpose of clarity to differentiate 

between a regulatory program administered by OSMRE and a State regulatory program that is 

administered by a State that has achieved primacy after approval by OSMRE. 

As discussed above in response to specific comments, OSMRE considers the 

enhancements to the existing regulations at 30 CFR Part 733 to be beneficial for early 

identification, evaluation, and resolution of potential issues that may impact a State regulatory 

authority’s ability to effectively implement, administer, enforce, or maintain its State regulatory 

program. Further, OSMRE finds that these mechanisms should avoid unnecessary substitution of 

Federal enforcement or withdrawal of State regulatory programs and minimize the number of onthe-ground impacts. Therefore, OSMRE is adopting, with minor modifications, based upon 

comments received from the public and further OSMRE analysis, the proposal to enhance 30 

CFR Part 733. 

Final Rule § 733.5 Definitions. 

OSMRE proposed to add a definition section to 30 CFR Part 733 that would define the 

terms “action plan” and “State regulatory program issue.” In short, under the proposed definition, 

the term “action plan” would mean “a detailed schedule OSMRE prepares to identify specific 

requirements a regulatory authority must achieve in a timely manner to resolve State regulatory 
134 

program issues identified during oversight of State regulatory programs.” OSMRE proposed to 

define the term “State regulatory program issue” to mean: 

an issue OSMRE identifies during oversight of a State or Tribal regulatory 

program that could result in a State regulatory authority not effectively 

implementing, administering, enforcing, or maintaining all or any portion of its 

State regulatory program, including instances when a State regulatory authority 

has not adopted and implemented program amendments that are required under 30 

CFR 732.17 and 30 CFR Subchapter T, and issues related to the requirement in 

section 510(b) of the Act that a State regulatory authority must not approve a 

permit or revision to a permit unless the State regulatory authority finds that the 

application is accurate and complete and that the application is in compliance with 

all requirements of the Act and the State regulatory program. 

As discussed above in OSMRE’s responses to public comments, OSMRE received many 

comments on the enhanced 30 CFR Part 733 process in general, including comments on the 

proposed definitions. As OSMRE explained in response to specific comments, the proposed 

definitions are appropriate and it is adopting 30 CFR 733.5 as proposed, with one minor 

exception. In the definition of “action plan,” OSMRE is inserting the word “State” between “a” 

and “regulatory authority” to be consistent with the remainder of the Part and to differentiate 

between situations when OSMRE is the regulatory authority. Thus, the final definition will read, 

“[a]ction plan means a detailed schedule OSMRE prepares to identify specific requirements a 

State regulatory authority must achieve in a timely manner to resolve State regulatory program 

issues identified during oversight of State regulatory programs.” 

OSMRE most frequently identifies issues that it will now classify as State regulatory 

program issues during oversight of a State regulatory program, but OSMRE may also be alerted 

to a State regulatory program issue from a citizen complaint or a request for a Federal inspection. 

State regulatory program issues are those that may result in a State regulatory authority not 

adhering to its approved State regulatory program. Other examples of a State regulatory program 
135 

issue include when a State regulatory authority does not adopt and implement program 

amendments that are required under 30 CFR 732.17 and 30 CFR Subchapter T. The proposed 

definition of State regulatory program issue, which OSMRE is finalizing in this rule, includes 

issues related to the requirement in SMCRA section 510(b), 30 U.S.C. 1260(b), that a State 

regulatory authority must not approve a permit or permit revision, unless the State regulatory 

authority finds that the application is accurate and complete and is in compliance with all of 

SMCRA’s requirements and those of the State regulatory program. 

To provide greater context in which the term “State regulatory program issue” is used, 

the next two paragraphs will describe how the State regulatory program issues covered by 30 

CFR Part 733 sometimes overlap with the TDN and Federal inspection process provided for in 

30 CFR Part 842. As discussed below in relation to finalized 30 CFR Part 842, the TDN and 

Federal inspection process in section 521(a) of SMCRA and the State regulatory program 

enforcement provisions in section 521(b) of SMCRA, along with the existing implementing 

regulations, differentiate between issues related to a State regulatory authority’s failure to 

implement, administer, maintain, and enforce all or a part of a State regulatory program and 

possible violations that could lead to a TDN or Federal inspection. Most notably, the State 

regulatory program enforcement provisions of section 521(b) of SMCRA generally address 

systemic programmatic problems with a State regulatory program, not specific violations 

exclusive to an individual operation or permit as detailed in section 521(a) of SMCRA. However, 

citizens sometimes identify State regulatory program issues in citizen complaints under section 

521(a) of SMCRA and 30 CFR Part 842 that may result in a TDN. OSMRE may also become 

aware of a State regulatory program issue while overseeing enforcement of specific operations or 

permits. 
136 

SMCRA and the existing regulations provide a remedy for systemic programmatic issues 

at 30 CFR Part 733 by identifying procedures for substituting Federal enforcement of State 

regulatory programs or withdrawing approval of State regulatory programs. The proposed 

addition of early identification and corrective action plans to address State regulatory program 

issues that OSMRE is adopting under this final rule will enhance OSMRE’s ability to ensure 

prompt resolution of issues, which, if unattended, may result in OSMRE exercising the rare 

remedy of substituting Federal enforcement or withdrawing a State program. The definition of 

“action plan,” as finalized in section 733.5, will dovetail in practice with the concept of 

“appropriate action” found in section 842.11(b)(1)(ii)(B)(3), in that a State regulatory authority’s 

action plan may qualify as appropriate action in response to a TDN under that finalized section 

842.11(b)(1)(ii)(B)(3). In addition, the definition of “State regulatory program issue,” as 

finalized in section 733.5, helps to further clarify the differences between the types of violations 

or issues that will be addressed under the TDN and Federal inspection process in section 521(a) 

and the State regulatory program enforcement provisions in section 521(b) of SMCRA, 

respectively.

Final Rule § 733.10 Information collection. 

OSMRE is adopting this section as proposed. As discussed more fully in the Procedural 

Determinations below, no additional burden is placed on the public as a result of the 

enhancements to 30 CFR Part 733. Moreover, no public comments were received on this section. 

Final Rule § 733.12 Early identification and corrective action to address State 

regulatory program issues. 

OSMRE proposed to redesignate certain sections of existing 30 CFR Part 733 to 

accommodate both the proposed new definition section at 30 CFR 733.5, discussed 

above, and the enhancement to 30 CFR Part 733, proposed to be added as section 733.12 
137 

entitled, “Early identification and corrective action to address State regulatory program 

issues.” This redesignation is being adopted as proposed because both sections—

Definitions and Early identification and corrective action to address State regulatory 

program issues—are being finalized. 

Final section 733.12 contains substantive mechanisms and compliance strategies 

that OSMRE may use to resolve a State regulatory program issue (as defined in finalized 

30 CFR 733.5). Although OSMRE and State regulatory authorities have historically 

worked closely and used similar approaches, incorporating these approaches into the 

regulations provides a clear mechanism for early identification and resolution of issues 

that will enable OSMRE to achieve regulatory certainty and uniform implementation of 

the procedures among State regulatory authorities. This addition to the regulations 

includes procedures for developing an action plan so that OSMRE can ensure that State

regulatory program issues are timely resolved. When OSMRE identifies a State

regulatory program issue, final section 733.12(a) provides that the OSMRE Director 

should take action to make sure that the issue is corrected as soon as possible in order to 

ensure that it does not escalate into an issue that would give the Director reason to believe 

that the State regulatory authority is not effectively implementing, administering, 

enforcing, or maintaining all or a portion of its State regulatory program. The unresolved 

issue could otherwise trigger the process that might lead to substituting Federal 

enforcement of a State regulatory program or withdrawing approval of a State regulatory 

program as provided in 30 CFR Part 733. 

OSMRE is finalizing subsection 733.12(a)(1) as proposed with one minor 

modification. As proposed, this paragraph provided that “[t]he Director may become 
138 

aware of State regulatory program issues through oversight of State regulatory programs 

or as a result of information received from any person.” In response to public comments, 

discussed in more detail above, OSMRE has substituted “any source” for the proposed 

language “any person.” OSMRE agrees with the commenter that this terminology is more 

expansive and inclusive and will likely result in OSMRE considering any information, no 

matter the source, about an alleged State regulatory program issue. 

In general, final section 733.12(b) allows the OSMRE Director, or his or her 

delegate, as set forth in OSMRE’s guidance, to “employ any number of compliance 

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

issue in a timely and effective manner.” This finalized language reflects a minor, 

grammatical change from the proposed rule. OSMRE has added “a” before “State 

regulatory program” and removed the “s” from “issues” to clarify the meaning of the 

sentence and place the sentence in the singular tense.

OSMRE has made another change to final section 733.12(b). This change is in the 

second sentence that, as proposed, read: “However, if the Director or delegate does not 

expect that the State regulatory authority will resolve the State regulatory program issue 

within 180 days after identification or that it is likely to result in an on-the-ground 

violation, then the Director or delegate will develop and institute an action plan.” In the 

final rule, OSMRE has modified the second sentence to read: “However, if the Director 

or delegate does not expect that the State regulatory authority will resolve the State 

regulatory program issue within 180 days after identification or that it is likely to result in 

a violation of the approved State program, then the Director or delegate will develop and 

institute an action plan.” (Emphasis added to show the revised language). OSMRE has 
139 

adopted this final language due to the variety of comments, discussed above, raising 

concerns about OSMRE’s differentiation between violations outlined in 30 U.S.C. 

1271(a)—subject to the 30 CFR Part 842 TDN process—and violations outlined in 30 

U.S.C. 1271(b)—subject to 30 CFR Part 733. Specifically, many commenters raised 

questions about how OSMRE would treat what the commenters characterized as “permit 

defects,” which might be informally viewed, as mentioned above, as a deficiency in a 

permit-related action taken by a State regulatory authority or problems in a permit that do 

not align with the approved State regulatory program. However, OSMRE is not defining 

the term “permit defects” in this preamble or in the final rule and it is not defined in 

SMCRA, OSMRE regulations, or current internal OSMRE policies and should not be 

viewed as a distinct form of violation. To avoid confusion and the possibility of creating 

further ambiguity by introducing the new term “on-the-ground violation” into OSMRE 

regulations, OSMRE is removing this proposed phrase. The term “on-the-ground 

violation” is also not defined in SMCRA, OSMRE regulations, or OSMRE internal 

documents and OSMRE declines to define this term as it may be misconstrued as a 

distinct type of violation. Therefore, OSMRE has decided, in response to comments, that 

it is best to substitute the phrase “violation of the approved State program” for the 

proposed phrase “on-the-ground violation.” The finalized phrase comports with the 

existing and finalized regulations at 30 CFR Part 842 and bridges the gap between 

violations identified during the 30 U.S.C. 1271(a) TDN process that may actually be 

systemic in nature (and thus addressed in the 30 CFR 733 State regulatory program issue 

process as finalized and authorized by 30 U.S.C. 1271(b)), but later results in a sitespecific violation of an approved State program. OSMRE acknowledges that a site-
140 

specific violation of an approved State program often manifests as an on-the-ground 

impact. However, these violations may also manifest in other ways, such as a permittee’s 

failure to submit required design plans, monitoring reports, or annual certifications. 

OSMRE offers these as examples and not as an exhaustive list of potential violations of 

the approved State program that may result in OSMRE exercising site-specific 

enforcement under 30 U.S.C. 1271(a), rather than continuing to address them as State 

regulatory program issues under 30 U.S.C. 1271(b). 

As proposed, subsections 733.12(b)(1)-(3) provided details about requirements of 

action plans. OSMRE is substantively adopting the proposed requirements for an action 

plan. Specifically, OSMRE will prepare a written action plan with “specificity to identify 

the State regulatory program issue and an effective mechanism for timely correction.” 

When OSMRE is preparing the action plan, OSMRE will consider any input it receives 

from the State regulatory authority. When selecting corrective measures to integrate into 

the action plan, OSMRE may consider any established or innovative solutions, including 

the compliance strategies referenced above. Additionally, finalized section 733.12(b)(2), 

states that an action plan will identify any necessary technical or other assistance that the 

Director or his or her delegate can provide and remedial measures that a State regulatory 

authority must take immediately. Moreover, final subsection 733.12(b)(3), describes the 

contents of an action plan. To ensure that OSMRE can adequately track action plans and 

that the underlying State regulatory program issue is resolved, each action plan, under the 

proposed rule, was to include: “An action plan identification number”; “A concise title 

and description of the State regulatory program issue”; “Explicit criteria for establishing 

when complete resolution will be achieved”; “Explicit and orderly sequence of actions 
141 

the State regulatory authority must take to remedy the problem”; “A schedule for 

completion of each action in the sequence”; and “A clear explanation that if the action 

plan, upon completion, does not result in correction of the State regulatory program issue, 

the provisions of 30 CFR 733.13 may be triggered.” The only modification OSMRE is 

making to final paragraphs 30 CFR 733.12(b)(1)-(3) is to add the preposition “an” before 

“action plan” and remove the plural tense of action plan at the beginning of paragraphs

(b)(1)-(3) to be grammatically correct and reflect the singular tense.

OSMRE has made modifications to final section 733.12(c) in response to a 

request by a NGO commenter to affirmatively state that OSMRE will track all identified 

State regulatory program issues and any associated action plans. Although it was 

OSMRE’s intention to track and report both, OSMRE did not specifically state in the 

proposed rule that any action plan associated with identified a State regulatory program 

issue would be tracked and reported in the applicable State regulatory authority’s Annual 

Evaluation report. OSMRE has removed this ambiguity by stating in the final rule that 

“any associated action plan” must also be tracked and reported in addition to the State 

regulatory program issues. Also, in response to the NGO commenter’s request, OSMRE 

is including a requirement that the “State regulatory authority Annual Evaluation reports 

will be accessible thorough OSMRE’s website and at the applicable OSMRE office.” 

OSMRE agrees with the commenter that this modification to the proposed rule promotes 

transparency and accountability. 

OSMRE is adopting section 733.12(d) as proposed with one modification to 

comport with the change discussed above in relationship to final subsection 733.12(b). 

Specifically, final section 733.12(d) states that nothing in section 733.12 “prevents a 
142 

State regulatory authority from taking direct enforcement action in accordance with its 

State regulatory program, or OSMRE from taking appropriate oversight enforcement 

action, in the event that a previously identified State regulatory program issue results in 

or may imminently result in a violation of the approved State program.” OSMRE relies 

on the same rationale described above for the removal of the term “on-the-ground 

violation” and the substitution of the phrase, “a violation of the approved State program.” 

In the context of finalized section 733.12(d), determining whether a violation is imminent

depends on the circumstances, and OSMRE will rely on the authorized representative to 

use his or her professional judgment to determine whether a violation of the approved 

State program is imminent in a given situation.

In sum, finalized 30 CFR Part 733 will ensure a more complete enforcement of SMCRA 

and provide guidance on early detection of potential problems that may, if left unaddressed, 

escalate to the point that OSMRE considers instituting the process that might result in OSMRE 

substituting Federal enforcement or withdrawing all or a portion a State program as outlined in 

finalized 30 CFR 733.13 through 733.14 while preserving (through 30 CFR 733.12(d)) the 

ability to take direct enforcement action in the event that a previously identified State regulatory 

program issue results in or may imminently result in a violation of the approved State program. 

Final Rule Part 736 Federal Program For A State 

OSMRE is updating the cross-reference in finalized section 736.11(a)(2) as 

proposed to account for the redesignation of existing “§ 733.12” to finalized “§ 733.13.” 

Final Rule § 842.11(b)(1) 

In the proposed rule, OSMRE explained that existing 30 CFR 842.11(b)(1) 

describes the circumstances when OSMRE “shall” conduct a Federal inspection, but the 
143 

paragraph primarily focuses on the process leading up to a Federal inspection, including 

the process for OSMRE’s issuance of a TDN to a State regulatory authority. In general, 

consistent with section 521(a) of SMCRA, when there is no imminent harm situation and

OSMRE issues a TDN to a State regulatory authority, OSMRE evaluates the State 

regulatory authority’s response to the TDN before deciding whether to conduct a Federal 

inspection. Consistent with the existing regulations, and the regulations finalized today, 

OSMRE will issue a TDN to a State regulatory authority only when an authorized 

representative of OSMRE has reason to believe that there is a violation of SMCRA, the 

implementing regulations, the applicable State regulatory program, or any condition of a 

permit or an exploration approval. In general, OSMRE will also conduct a Federal 

inspection whenever there is any condition, practice, or violation that creates an imminent 

danger to the health or safety of the public or is causing, or that OSMRE reasonably 

expects to cause, a significant, imminent, environmental harm to land, air, or water 

resources. In the latter situation, OSMRE bypasses the TDN process and proceeds 

directly to a Federal inspection, if the person supplying the information provides 

adequate proof that there is an imminent danger to the public health and safety or a 

significant, imminent environmental harm and that the State regulatory authority has 

failed to take appropriate action. 

OSMRE proposed to alter the introductory sentence at existing 30 CFR 

842.11(b)(1), by replacing the word “shall” with the word “will.” However, after 

consideration of public comments, discussed in more detail above, and based on 

OSMRE’s own expertise and analysis, OSMRE has determined that the word “must” is 

more appropriate because it explains an action that OSMRE is obligated to institute as 
144 

prescribed by SMCRA under the circumstances described in 30 CFR 842.11(b)(1). 

Therefore, the final rule substitutes the word “must” for “will” to better communicate the 

mandatory nature of the authorized representative’s action. 

Final Rule § 842.11(b)(1)(i) 

In the proposed rule, OSMRE also proposed to clarify that when an authorized 

representative assesses whether he or she has reason to believe a violation exists, the 

authorized representative will make that determination on the basis of “any information 

readily available to him or her.” This clarification is consistent with section 521(a)(1) of 

SMCRA, which sets forth that OSMRE can formulate reason to believe “on the basis of 

any information available to [the Secretary], including receipt of information from any 

person.” 30 U.S.C. 1271(a)(1). Based on SMCRA’s plain language, such information is 

not restricted to information OSMRE receives from a citizen complainant. Rather, the 

information includes any information OSMRE receives from a citizen, the applicable 

State regulatory authority, or any other information OSMRE is aware exists. Also, the 

final rule and the preamble discussion above that is associated with this section clarifies 

that such information must be readily available, so that the process will proceed as 

quickly as possible and will not become open-ended. OSMRE is adopting this section as 

proposed, with one exception. In response to several comments, discussed in more detail 

above, OSMRE is further clarifying this section by adding to the final rule the phrase, 

“from any source, including any information a citizen complainant or the relevant State 

regulatory authority submits, ...” This addition to the final rule now makes section 

842.11(b)(1)(i) harmonize with final rule section 842.11(b)(2) that now includes the same 

phraseology. 
145 

Final Rule § 842.11(b)(1)(ii)(A)

Existing 30 CFR 842.11(b)(1)(ii)(A) reads as follows: “There is no State 

regulatory authority or the Office is enforcing the State program under section 504(b) or 

521(b) of the Act and part 733 of this chapter[.]” OSMRE proposed only minor 

grammatical and conformity changes to this section. Specifically, OSMRE proposed to 

add the word “regulatory” between the words “State” and “program” to promote 

consistency throughout this rulemaking and clarify that OSMRE is referring to State 

regulatory programs. OSMRE has finalized this section as proposed. 

Final Rule § 842.11(b)(1)(ii)(B)(1)-(4)

OSMRE proposed non-substantive changes to existing 30 CFR 

842.11(b)(1)(ii)(B)(1) for readability, including capitalizing “State” when referring to the 

“State regulatory authority” and adding a comma after “notification”, and changing the 

word “shall” to “will”. These changes have been adopted as proposed. OSMRE did not 

propose any modification to the existing regulation at 30 CFR 842.11(b)(1)(ii)(B)(2), but 

the provision is discussed above to provide context related to the proposed clarifications 

in 30 CFR 842.11(b)(1)(ii)(B)(3), which describes the term “appropriate action,” and 30 

CFR 842.11(b)(1)(ii)(B)(4), which describes the term “good cause.” Likewise, OSMRE 

is not altering section 842.11(b)(1)(ii)(B)(1).

Final Rule § 842.11(b)(1)(ii)(B)(3) 

OSMRE proposed to add a provision to existing 30 CFR 842.11(b)(1)(ii)(B)(3), 

that appropriate action “may include OSMRE and the State regulatory authority 

immediately and jointly initiating steps to implement corrective action to resolve any 

issue that the authorized representative and applicable Field Office Director identify as a 
146 

State regulatory program issue, as defined in 30 CFR part 733.” OSMRE is finalizing this 

subsection as proposed. The final rule gives the responsibility for identification of State

regulatory program issues to the authorized representative and applicable Field Office 

Director, as these officials possess significant knowledge of the specific requirements of 

and responsibilities under the applicable State regulatory program. Although OSMRE has 

historically allowed programmatic resolution of State regulatory program issues, such as 

implementation of remedies under 30 CFR Part 732, to constitute “appropriate action” in 

a given situation, the regulations prior to this addition did not explain resolution of State

regulatory program issues through corrective actions. In order to avoid confusion or 

uncertainty for the regulated community, State regulatory authorities, and the public at 

large, the finalized rule seeks to remove ambiguity and definitively states that 

“appropriate action” may include corrective action to resolve State regulatory program 

issues. This fits well with the finalized Part 733 because final section 733.12(a)(2) 

reaffirms that, if OSMRE concludes that the State regulatory authority is not effectively 

implementing, administering, enforcing, or maintaining all or a portion of its State 

regulatory program, OSMRE may substitute Federal enforcement of the State regulatory 

program or withdraw approval. Additionally, in accordance with finalized section

733.12(d), OSMRE reserves the right to reinstitute enforcement if, subsequent to a 

finding of appropriate action based upon a corrective action consistent with proposed 30 

CFR Part 733, a violation of the approved State program occurs or may imminently 

occur. 

Final Rule § 842.11(b)(1)(ii)(B)(4) 

OSMRE is adopting this subsection as proposed. Specifically, the final rule makes 
147 

minor clarifications to the examples of what constitutes good cause as found in the 

existing regulations. First, final section 842.11(b)(1)(ii)(B)(4)(i) makes non-substantive 

changes for readability and consistency by adding the word “regulatory” between “State” 

and “program” and switching the position of two phrases in the provision. Second, the 

final rule revises section 842.11(b)(1)(ii)(B)(4)(ii) to provide that good cause includes: 

“The State regulatory authority has initiated an investigation into a possible violation and 

as a result has determined that it requires a reasonable, specified additional amount of 

time to determine whether a violation exists.” The final rule explains that an OSMRE 

authorized representative has discretion to determine how long the State regulatory 

authority should reasonably be given to complete its investigation of a possible violation. 

Also, under the final rule the authorized representative will communicate to the State 

regulatory authority the date by which the State regulatory authority’s investigation must 

be completed. This revision promotes prompt identification and resolution of possible 

violations. 

As proposed, the final rule makes a minor revision to section

842.11(b)(1)(ii)(B)(4)(iii). A State regulatory authority will demonstrate that it lacks 

jurisdiction over the possible violation to qualify for this good cause showing. 

Similarly, as proposed, the final rule makes a minor, non-substantive 

modifications to section 842.11(b)(1)(ii)(B)(4)(iv) for readability and to clarify that, in 

order to show good cause, the State regulatory authority will demonstrate that an order 

from an administrative review body or court of competent jurisdiction precludes it from 

taking action on the possible violation. 

Finally, as proposed, the final rule makes minor, non-substantive modifications to 
148 

section 841.11(b)(1)(ii)(B)(4)(v) to enhance readability and clarity. Specifically, the final 

rule reads: “Regarding abandoned sites, as defined in 30 CFR 840.11(g), the State

regulatory authority is diligently pursuing or has exhausted all appropriate enforcement 

provisions of the State regulatory program.” 

 Final Rule § 842.11(b)(2) 

Section 842.11(b)(2) defines what is “reason to believe” when an authorized 

representative is determining if a possible violation exists as presented by a citizen 

complainant. 

Because there was ambiguity surrounding this term, OSMRE proposed to revise this 

section to read: 

An authorized representative will have reason to believe that a violation, 

condition, or practice referred to in paragraph (b)(1)(i) of this section 

exists if the facts that a complainant alleges, or facts that are otherwise 

known to the authorized representative, constitute simple and effective 

documentation of the alleged violation, condition, or practice. In making 

this determination, the authorized representative will consider any 

information readily available to him or her, including any information a 

citizen complainant or the relevant regulatory authority submits to the 

authorized representative. 

As discussed in great detail in response to comments above, OSMRE is adopting this 

section as proposed, with one exception. Consistent with this approach, the final rule 

modifies section 842.11(b)(2) to clarify that OSMRE will consider any information 

readily available and not only the facts alleged in a citizen complaint when determining

whether it has reason to believe a violation exists. Nothing in SMCRA requires OSMRE

to accept alleged facts as true in a vacuum. Rather, information that a citizen provides is 

usually only a portion of the readily available information that OSMRE would consider 

when deciding whether to initiate the TDN process. Moreover, the inclusion of the phrase 
149 

“reason to believe” in section 521(a)(1) of SMCRA indicates that Congress intended for 

OSMRE to use discretion in determining whether to issue a TDN to a State regulatory 

authority. With the changes finalized today, after OSMRE receives an allegation of a 

violation and assess all readily available information, OSMRE will apply independent, 

professional judgment to determine whether OSMRE has reason to believe a violation 

exists. Congress created OSMRE to be the expert agency that administers SMCRA. 

Therefore, OSMRE should not be acting as a mere conduit for transmitting a citizen 

complaint to a State regulatory authority in the form of a TDN. 

In response to a few commenters, OSMRE has added the phrase “from any 

source” in the last sentence of the finalized section. Specifically, the last sentence, will 

now read, “[i]n making this determination, the authorized representative will consider 

any information readily available to him or her, from any source, including any 

information a citizen complainant or the relevant regulatory authority submits to the 

authorized representative” (emphasis added to show the revised language). This change is 

to clarify that an authorized representative may consider any information readily 

available, regardless of where the information originates.

In summary, final section 842.11(b)(2) comports with finalized section 

842.11(b)(1)(i), which allows OSMRE to consider “any information readily available” 

when making a “reason to believe” determination. Being able to read these two 

provisions in harmony should reduce or eliminate any conflict or confusion that the 

existing provisions created.

Final § 842.12(a) 

OSMRE is adopting section 842.12(a) as proposed. Specifically, 30 CFR 
150 

842.12(a) identifies the process to request a Federal inspection. This finalized provision 

states that a person may request a Federal inspection by submitting a signed, written 

statement (or an oral report followed by a signed written statement) giving the authorized 

representative reason to believe that a violation, condition or practice referred to in 

§ 842.11(b)(1)(i) exists and that the State regulatory authority has been notified in writing

about the violation. The final rule includes the minor, non-substantive modifications to 

the provision as proposed. These provisions provide that when any person requests a 

Federal inspection, the person’s written statement “must also set forth the fact that the 

person has notified the State regulatory authority, if any, in writing, of the existence of 

the possible violation, condition, or practice” and the requirement that the person’s 

statement must also include “the basis for the person’s assertion that the State regulatory 

authority has not taken action with respect to the possible violation.” These provisions 

reflect the fact that, most often, a State regulatory authority will address a potential 

violation when the State regulatory authority is made aware of the situation. 

Finalized 30 CFR 842.12(a) complements the clarifications outlined above in the 

discussion of finalized section 842.11(b)(1)’s “reason to believe” standard. Specifically, 

the final rule modifies the existing language in section 842.12(a) to clarify that, when a 

person requests a Federal inspection, the person’s request must include, “information 

that, along with any other readily available information, may give the authorized 

representative reason to believe that a violation, condition, or practice referred to in 

§ 842.11(b)(1)(i) exists.”

OSMRE reiterates that under finalized section 842.12(a), when OSMRE 

determines whether a violation exists for purposes of issuing a TDN or determining 
151 

whether to conduct a Federal inspection, a State regulatory program issue will not qualify 

as a possible violation unless there is an actual or imminent violation of an approved 

State program. Similarly, OSMRE will not consider a State regulatory authority’s failure 

to enforce its State regulatory program as a violation that warrants a TDN or Federal 

inspection. The TDN and Federal inspection process in section 521(a) applies to 

oversight enforcement about site-specific violations. Congress differentiated this type of 

individual operation oversight from the State regulatory program enforcement provisions 

of section 521(b). Based on this distinction, the existing 30 CFR Part 733 addresses State 

regulatory program issue enforcement identified in section 521(b). 

VI. Procedural Determinations

A. Statutes

1. Congressional Review Act

Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq., the Office of 

Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) 

has determined that this rulemaking is not major rulemaking, as defined by 5 U.S.C. 804(2), 

because this rulemaking has not resulted in, and is unlikely to result in: 1) an annual effect on the 

economy of $100,000,000 or more; 2) a major increase in costs or prices for consumers, 

individual industries, Federal, State, or local government, or geographic regions; or 3) significant 

adverse effects on competition, employment, investment, productivity, innovation, or on the 

ability of United States-based enterprises to compete with foreign-based enterprises in domestic 

and export markets. 

2. Data Quality Act

In developing this rule, OSMRE did not conduct or use a study, experiment, or survey 
152 

requiring peer review under the Data Quality Act (Pub. L. 106-544, app. C, sec. 515, 114 Stat. 

2763, 2763A-153-154). 

3. National Environmental Policy Act

OSMRE has determined that the non-substantive changes finalized in this rulemaking are 

categorically excluded from environmental review under NEPA. 42 U.S.C. 4321 et seq. 

Specifically, OSMRE has determined that the final rule is administrative or procedural in nature 

in accordance with the Department of the Interior’s NEPA regulations at 43 CFR 46.210(i). The 

regulation provides a categorical exclusion for, “[p]olicies, directives, regulations, and 

guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or 

whose environmental effects are too broad, speculative, or conjectural to lend themselves to 

meaningful analysis... .” The final rule primarily clarifies how OSMRE formulates reason to 

believe in the TDN context and the information OSMRE considers in this analysis. It also 

enhances a process, the development of an action plan, that already exists in an internal agency 

document so that OSMRE can better ensure that a State regulatory authority adequately 

implements, administers, enforces, and maintains its approved State program. As such, the final

rule merely clarifies and enhances OSMRE’s existing processes. Therefore, OSMRE deems 

these changes to be administrative and procedural in nature. These clarifications and 

enhancements are aimed at improving efficiency and enhanced collaboration among State 

regulatory authorities and OSMRE. OSMRE has also determined that the final rule does not 

involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require 

further analysis under NEPA. 

4. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 
153 

U.S.C. 3701 note et seq.) directs Federal agencies to use voluntary consensus standards when 

implementing regulatory activities unless to do so would be inconsistent with applicable law or 

otherwise impractical. This final rule is not subject to the requirements of section 12(d) of the 

NTTAA because application of those requirements would be inconsistent with SMCRA, and the 

requirements would not be applicable to this final rulemaking. 

5. Paperwork Reduction Act

The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) provides that an agency 

may not conduct or sponsor, and a person is not required to respond to, a “collection of 

information”, unless the collection of information is approved by OMB, and it displays a 

currently valid OMB control number. Of the existing regulations impacted by the final rule (30 

CFR Parts 733, 736, and 842), 30 CFR Parts 733 and 842 have existing OMB control numbers. 

However, after research and input from State regulatory authorities, no additional burden is 

imposed by the enhancement of 30 CFR Part 733—specifically the codification of 30 CFR 

733.12—Early identification of corrective action and corrective action to address State 

regulatory program issues. Additionally, as explained herein the only modification of 30 CFR 

Part 736 is to revise a cross-reference to be consistent with the redesignation of provisions within

30 CFR Part 733. Existing 30 CFR Part 842 requires an OMB information collection because it 

allows citizens to submit a written request for a Federal inspection using an OMB-approved 

form. See OMB No. 1029-0118 available on OSMRE’s website. 

https://www.osmre.gov/resources/forms/OMB1029-0118.pdf. This final rule will not alter the 

PRA obligations under 30 CFR Part 842. Similar to the research performed by OSMRE in 

relationship to 30 CFR Part 733 as finalized, OSMRE has discovered that the clarification of 30 

CFR Part 842 will not place any additional burden on the public, including, “individuals, 
154 

businesses, and State, local, and Tribal governments” as defined in the PRA. In fact, under this 

final rule, the burden will be reduced. Therefore, this final rule will not impose an additional 

collection of information burden, as defined by 44 U.S.C. 3502, upon any entity defined in the 

PRA. Moreover, no public comments were received on this matter. 

6. Regulatory Flexibility Act

The Regulatory Flexibility Act generally requires Federal agencies to prepare a 

regulatory flexibility analysis for rules that are subject to the notice-and-comment rulemaking 

requirements under the Administrative Procedure Act (5 U.S.C. 553), if the rule would have a 

significant economic impact on a substantial number of small entities. See 5 U.S.C. 601-612. 

Based on OSMRE’s collaboration with State regulatory authorities and years of experience, 

OSMRE certifies that this final rule will not have a significant economic impact on a substantial 

number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

7. Small Business Regulatory Enforcement Fairness Act

This final rule is not a major rule under the Small Business Regulatory Enforcement 

Fairness Act. 5 U.S.C. 804(2). Specifically, the final rule: 1) will not have an annual effect on the 

economy of $100 million or more; 2) will not cause a major increase in costs or prices for 

consumers, individual industries, Federal, State, or local government agencies, or geographic 

regions; and 3) will not have significant adverse effects on competition, employment, 

investment, productivity, innovation, or on the ability of United-States based enterprises to 

compete with foreign-based enterprises in domestic and export markets. 

8. Unfunded Mandates Reform Act

This final rule does not impose an unfunded mandate or have a significant or unique 

effect on State, local, or Tribal governments, or the private sector, that will result in the 
155 

expenditure of funds by State, local, or Tribal governments, in the aggregate, or by the private 

sector of $100 million or more in any one year. To the contrary, as discussed herein, this final 

rule is aimed at eliminating duplication of resources and processes between Federal and State 

agencies and enhancing cooperation between OSMRE and State regulatory authorities. 

Therefore, a statement containing the information required by the Unfunded Mandates Reform 

Act (2 U.S.C. 1531 et seq.) is not required. 

B. Executive Orders

1. Executive Order 12630—Governmental Actions and Interference with

Constitutionally Protected Property Rights

This final rule does not effect a taking of private property or otherwise have takings 

implications under E.O. 12630. The final rule primarily concerns Federal oversight of State 

regulatory programs and enforcement when permittees and operators are not complying with the 

law. Therefore, the final rule will not result in private property being taken for public use without 

just compensation. A takings implication assessment is not required.

2. Executive Order 12866—Regulatory Planning and Review and Executive

Order 13563—Improving Regulation and Regulatory Review

E.O. 12866 provides that OIRA in the OMB will review all significant rules. Despite 

being specifically briefed on this rulemaking as proposed and as finalized, both in writing and 

verbally, OIRA has not deemed this final rule significant because it will not have a $100 million 

annual impact on the economy, raise novel legal issues, or create significant impacts. The final 

rule primarily clarifies and enhances the existing regulations and OSMRE’s processes to reduce 

the burden upon the regulated community and preserve resources by allowing for greater 

cooperation between OSMRE and State regulatory authorities. 

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the 
156 

nation’s regulatory system to promote predictability, reduce uncertainty, and use the best, most 

innovative, and least burdensome tools for achieving regulatory ends. The Executive Order 

directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility 

and freedom of choice for the public where these approaches are relevant, feasible, and 

consistent with regulatory objectives. E.O. 13563 emphasizes further that agencies must base 

regulations on the best available science and that the rulemaking process must allow for public 

participation and an open exchange of ideas. This final rule has been developed in a manner 

consistent with and will further these requirements. 

3. Executive Order 12988—Civil Justice Reform

This final rule complies with the requirements of E.O. 12988. Among other things, this 

rule:

(a) satisfies the criteria of Section 3(a) requiring that all regulations be reviewed to

eliminate drafting errors and ambiguity; be written to minimize litigation; and provide

clear legal standards for affected conduct; and

(b) satisfies the criteria of Section 3(b) requiring that all regulations be written in clear

language and contain clear legal standards.

4. Executive Order 13045—Protection of Children from Environmental Health

Risks and Safety Risks

E.O. 13045 requires that environmental and related rules separately evaluate the potential 

impact to children. However, this final rule is not subject to E.O. 13045 because this is not an 

economically significant regulatory action as defined by E.O. 12866; and this action will not 

concern environmental health or safety risks disproportionately affecting children. 
157 

5. Executive Order 13132—Federalism

Under the criteria in Section 1 of E.O. 13132, this final rule does not have sufficient 

federalism implications to warrant the preparation of a federalism summary impact statement. 

While OSMRE’s clarification and enhancement of the existing regulations and processes in this 

final rule will have a direct effect on OSMRE’s relationship with the States, this effect is not 

significant as it neither imposes substantial unreimbursed compliance costs on States nor 

preempts State law. Furthermore, this final rule does not have a significant effect on the 

distribution of power and responsibilities among the various levels of government. In fact, the 

final rule will reduce burdens on State regulatory authorities and more closely align the 

regulations to SMCRA. Therefore, a federalism summary impact statement is not required. 

6. Executive Order 13175—Consultation and Coordination with Indian Tribal

Governments

The Department of the Interior strives to strengthen its government-to-government 

relationship with Tribes through a commitment to consultation with Tribes and recognition of 

their right to self-governance and tribal sovereignty. OSMRE has evaluated this final rule under 

the Department’s consultation policy and under the criteria in E.O. 13175 and has determined 

that it will not have substantial direct effects on federally recognized Tribes and that consultation 

under the Department’s tribal consultation policy is not required. Currently, no Tribes have 

achieved primacy; therefore, OSMRE regulates all surface coal mining and reclamation 

operations on Indian lands with tribal input and assistance. Currently, OSMRE works in 

conjunction with the Crow, Hopi, and Navajo regarding enforcement of surface coal mining and 

reclamation operations. This final rulemaking will not directly impact the Tribes. However, 

because these three Tribes have expressed interest in perhaps having their own regulatory 
158 

programs in the future, OSMRE has coordinated with the Crow, Hopi, and Navajo to inform 

them of, and to provide updates on the final rulemaking. OSMRE attended quarterly meetings of 

the Tribes in order to provide an overview of the proposed rule, provide updates on the 

rulemaking process, and address questions posed by the Tribes. 

7. Executive Order 13211 – Actions Concerning Regulations That Significantly

Affect Energy Supply, Distribution, or Use

E.O. 13211 requires agencies to prepare a Statement of Energy Effects for a rule that is: 

(1) considered significant under E.O. 12866, and (2) likely to have a significant adverse effect on

the supply, distribution, or use of energy; or is designated as a significant energy action by OMB. 

Because this final rule is not deemed significant under E.O. 12866 and is not expected to have a 

significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy 

Effects is not required. 

8. Executive Order 13771—Reducing Regulation and Controlling Regulatory

Costs

E.O. 13771 directs Federal agencies to reduce the regulatory burden on regulatory entities 

and control regulatory costs. Consistent with E.O. 13771 and the April 5, 2017, Guidance 

Implementing E.O. 13771, the final rule will have total costs less than zero. Moreover, this final 

rule operates to reduce the burden on State regulatory authorities by promoting coordination 

between OSMRE and States, eliminating duplication of processes, and increasing efficiency in 

resolving State regulatory authority program issues. In addition, this final rule provides 

compliance clarity to the regulatory community. Therefore, this final rule is a deregulatory 

action.

9. Executive Order 13783—Promoting Energy Independence and Economic

Growth
159 

Section 2 of E.O. 13783 requires agencies to “review all existing regulations, 

orders, guidance documents, policies, and any other similar agency actions” with the goal 

of eliminating provisions that impede domestic energy production. Section 2(a) exempts 

agency actions “that are mandated by law, necessary for the public interest, and 

consistent with the policy [to remove unnecessary regulatory burdens on domestic energy 

production while promoting clean air and water within the constraints of current 

statutes].” OSMRE, in conjunction with its State regulatory authority partners, has 

determined that this final rule promotes coordination “with other Federal agencies and 

State regulatory authorities to minimize duplication of inspections, enforcement, and 

administration of [SMCRA]” as specified by 30 U.S.C. 1211(c)(12) while also furthering 

the purposes of SMCRA including, but not limited to, assuring that surface coal mining 

operations are so conducted as to protect the environment and to strike the appropriate 

balance “between protection of the environment and agricultural productivity and the 

Nation’s need for coal as an essential source of energy.” See 30 U.S.C. 1202(d) and (f). 

In sum, OSMRE finds that this final rule satisfies the requirements of E.O. 13783 by 

appropriately removing unnecessary duplication of Federal and State efforts that impedes 

efficient oversight and enforcement of SMCRA and that may otherwise divert valuable 

time and monetary resources and impede or burden domestic energy production. 

List of Subjects 

30 CFR Part 733 

Intergovernmental relations, Surface mining, Underground mining. 

30 CFR Part 736 

161 

State regulatory program issue means an issue OSMRE identifies during oversight of a 

State or Tribal regulatory program that could result in a State regulatory authority not effectively 

implementing, administering, enforcing, or maintaining all or any portion of its State regulatory 

program, including instances when a State regulatory authority has not adopted and implemented 

program amendments that are required under 30 CFR 732.17 and 30 CFR Subchapter T, and 

issues related to the requirement in section 510(b) of the Act that a State regulatory authority 

must not approve a permit or revision to a permit unless the State regulatory authority finds that 

the application is accurate and complete and that the application is in compliance with all 

requirements of the Act and the State regulatory program. 

4. Revise § 733.10 to read as follows:

§ 733.10 Information collection.

The information collection requirement contained in 30 CFR 733.13(a)(2) has been 

approved by the Office of Management and Budget under 44 U.S.C. 3507 and assigned 

clearance number 1029-0025. The information required is needed by OSMRE to verify the 

allegations in a citizen request to evaluate a State program and to determine whether an 

evaluation should be undertaken. 

5. Redesignate §§ 733.12 and 733.13 as §§ 733.13 and 733.14 respectively.

6. Add a new § 733.12 to read as follows:

§ 733.12 Early identification and corrective action to address State regulatory program

issues.

(a) When the Director identifies a State regulatory program issue, he or she should

take action to make sure the identified State regulatory program issue is corrected as soon as 

possible in order to ensure that it does not escalate into an issue that would give the Director 
162 

reason to believe that the State regulatory authority is not effectively implementing, 

administering, enforcing, or maintaining all or a portion of its State regulatory program. 

(1) The Director may become aware of State regulatory program issues through oversight

of State regulatory programs or as a result of information received from any source. 

(2) If the Director concludes that the State regulatory authority is not effectively

implementing, administering, enforcing, or maintaining all or a portion of its State regulatory

program, the Director may substitute Federal enforcement of a State regulatory program or 

withdraw approval of a State regulatory program as provided in part 733. 

(b) The Director or his or her delegate may employ any number of compliance

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

in a timely and effective manner. However, if the Director or delegate does not expect that the 

State regulatory authority will resolve the State regulatory program issue within 180 days after 

identification or that it is likely to result in a violation of the approved State program, then the 

Director or delegate will develop and institute an action plan. 

(1) An action plan will be written with specificity to identify the State regulatory

program issue and an effective mechanism for timely correction. 

(2) An action plan will identify any necessary technical or other assistance that the

Director or his or her delegate can provide and remedial measures that a State regulatory 

authority must take immediately.

(3) An action plan must also include:

(i) An action plan identification number;

(ii) A concise title and description of the State regulatory program issue;

(iii) Explicit criteria for establishing when complete resolution will be achieved;
163 

(iv) Explicit and orderly sequence of actions the State regulatory authority must take to

remedy the problem; 

(v) A schedule for completion of each action in the sequence; and

(vi) A clear explanation that if the action plan, upon completion, does not result in

correction of the State regulatory program issue, the provisions of 30 CFR 733.13 may be 

triggered. 

(c) All identified State regulatory program issues and any associated action plan must be

tracked and reported in the applicable State regulatory authority’s Annual Evaluation report. 

These State regulatory authority Annual Evaluation reports will be accessible through OSMRE’s 

website and at the applicable OSMRE office. Within each report, benchmarks identifying 

progress related to resolution of the State regulatory program issue must be documented. 

(d) Nothing in this section prevents a State regulatory authority from taking direct

enforcement action in accordance with its State regulatory program, or OSMRE from taking 

appropriate oversight enforcement action, in the event that a previously identified State

regulatory program issue results in or may imminently result in a violation of the approved State 

program. 

PART 736—FEDERAL PROGRAM FOR A STATE

7. The authority citation for part 736 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-34. 

8. Revise § 736.11(a)(2) to read as follows:

§ 736.11 General procedural requirements.

(a) * * * 

(2) The Director shall promulgate a complete Federal program for a State upon the
164 

withdrawal of approval of an entire State program under § 733.13. 

* * * * *

PART 842—FEDERAL INSPECTIONS AND MONITORING

9. The authority citation for part 842 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq. 

10. Amend § 842.11 by revising paragraphs (b)(1) introductory text, (b)(1)(i),

(b)(1)(ii)(A), (b)(1)(ii)(B)(1), (3) and (4), and (b)(2) to read as follows:

* * * * *

(b)(1) An authorized representative of the Secretary must immediately conduct a Federal 

inspection: 

(i) When the authorized representative has reason to believe on the basis of any

information readily available to him or her, from any source, including any information a citizen 

complainant or the relevant State regulatory authority submits (other than information resulting 

from a previous Federal inspection), that there exists a violation of the Act, this chapter, the State

regulatory program, or any condition of a permit or an exploration approval, or that there exists 

any condition, practice, or violation that creates an imminent danger to the health or safety of the 

public or is causing or could reasonably be expected to cause a significant, imminent 

environmental harm to land, air, or water resources and— 

(ii)(A) There is no State regulatory authority or the Office is enforcing the State regulatory 

program under section 504(b) or 521(b) of the Act and part 733 of this chapter; or 

(B)(1) The authorized representative has notified the State regulatory authority of the 

possible violation and more than ten days have passed since notification, and the State regulatory 

authority has not taken appropriate action to cause the violation to be corrected or to show good 
165 

cause for not doing so, or the State regulatory authority has not provided the authorized 

representative with a response. After receiving a response from the State regulatory authority, 

but before a Federal inspection, the authorized representative will determine in writing whether 

the standards for appropriate action or good cause have been satisfied. A State regulatory 

authority’s failure to respond within ten days does not prevent the authorized representative from 

making a determination, and will constitute a waiver of the State regulatory authority’s right to 

request review under paragraph (b)(1)(iii) of this section. 

* * * * *

(3) Appropriate action includes enforcement or other action authorized under the

approved State program to cause the violation to be corrected. Appropriate action may include 

OSMRE and the State regulatory authority immediately and jointly initiating steps to implement 

corrective action to resolve any issue that the authorized representative and applicable Field 

Office Director identify as a State regulatory program issue, as defined in 30 CFR part 733. 

(4) Good cause includes:

(i) The possible violation does not exist under the State regulatory program;

(ii) The State regulatory authority has initiated an investigation into a possible violation

and as a result has determined that it requires a reasonable, specified additional amount of time 

to determine whether a violation exists. When analyzing the State regulatory authority’s 

response for good cause, the authorized representative has discretion to determine how long the 

State regulatory authority should reasonably be given to complete its investigation of the 

possible violation and will communicate to the State regulatory authority the date by which the 

investigation must be completed. At the conclusion of the specified additional time, the 

authorized representative will re-evaluate the State regulatory authority’s response including 
166 

any additional information provided; 

(iii) The State regulatory authority demonstrates that it lacks jurisdiction over the possible

violation under the State regulatory program; 

(iv) The State regulatory authority demonstrates that it is precluded from taking action on

the possible violation because an administrative review body or court of competent jurisdiction 

has issued an order concluding that the possible violation does not exist or that the temporary 

relief standards of the State regulatory program counterparts to section 525(c) or 526(c) of the 

Act have been satisfied; or

(v) Regarding abandoned sites, as defined in 30 CFR 840.11(g), the State regulatory

authority is diligently pursuing or has exhausted all appropriate enforcement provisions of the 

State regulatory program.

* * * * *

(2) An authorized representative will have reason to believe that a violation, condition, or

practice referred to in paragraph (b)(1)(i) of this section exists if the facts that a complainant 

alleges, or facts that are otherwise known to the authorized representative, constitute simple and 

effective documentation of the alleged violation, condition, or practice. In making this 

determination, the authorized representative will consider any information readily available to 

him or her, from any source, including any information a citizen complainant or the relevant 

State regulatory authority submits to the authorized representative.

* * * * *

§ 842.12 Requests for Federal inspections.

11. Revise § 842.12(a) to read as follows:

(a) Any person may request a Federal inspection under § 842.11(b) by providing to an
167 

authorized representative a signed, written statement (or an oral report followed by a signed 

written statement) setting forth information that, along with any other readily available 

information, may give the authorized representative reason to believe that a violation, condition, 

or practice referred to in § 842.11(b)(1)(i) exists. The statement must also set forth the fact that 

the person has notified the State regulatory authority, if any, in writing, of the existence of the 

possible violation, condition, or practice, and the basis for the person’s assertion that the State

regulatory authority has not taken action with respect to the possible violation. The statement 

must set forth a phone number, address, and, if available, an email address where the person can 

be contacted.

* * * * *