FEDERAL REGISTER: 55 FR 9400 (March 13, 1990)

DEPARTMENT OF THE INTERIOR

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

30 CFR Part 740

Federal Lands Program; Surface Coal Mining and Reclamation Operations

ACTION: Final rule. 

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

Interior (DOI) is amending a portion of the Federal lands regulations to conform to the July 6, 1984, decision of the U.S. 

District Court for the District of Columbia. This final rule amends the applicability of the Federal lands program in a 

manner consistent with the District Court decision. 

EFFECTIVE DATE: April 12, 1990. 

FOR FURTHER INFORMATION CONTACT: Dr. Fred Block, Office of Surface Mining Reclamation and 

Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW, Washington, DC 20240. Telephone: 

202-343-1864 (commercial or FTS). 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of Final Rule and Response to Public Comments 

III. Procedural Matters 

 

I. BACKGROUND 

 Section 523(a) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) requires the Secretary to 

promulgate and implement a Federal lands program applicable to all surface coal mining and reclamation operations 

taking place pursuant to any Federal law on Federal lands. Under section 523(c) of SMCRA, a State with an approved 

State program may enter into a cooperative agreement with the Secretary of the Interior (hereinafter referred to as the 

Secretary) to provide for State regulation of surface coal mining and reclamation operations on Federal lands within the 

State. Section 523(c) provides, however, that the Secretary may not delegate to the State his responsibilities: (1) To 

approve mining plans on Federal lands under the Mineral Leasing Act, as amended (MLA), (2) to designate Federal lands 

as unsuitable for surface coal mining pursuant to section 522 of SMCRA, or (3) to regulate other activities taking place 

on Federal lands. 

 On March 13, 1979, the Secretary promulgated the Federal lands program, 30 CFR Chapter VII, Subchapter D (44 

FR 15332-15341). That program was amended on February 16, 1983 (48 FR 6912-6941). A notice correcting certain 

editorial errors and omissions in the February 16, 1983, rule was published on April 1, 1983 (48 FR 13984). 

 The February 16, 1983, rule was designed to allow States to assume greater responsibility for administering the 

requirements of SMCRA on Federal lands. That rule established provisions limiting the applicability of the Federal lands 

program to exclude lands containing unleased Federal coal beneath privately owned surface. 

 The February 16, 1983, rule was challenged in Round I of In re: Permanent Surface Mining Regulation Litigation (II), 

Civil Action No. 79-1144 (D.D.C. 1984). The court ruled on the challenge on July 6, 1984, and in an amended order on 

August 30, 1984. 

 Among other things, the court ruled, with respect to the applicability of the Federal lands program, that the February 

16, 1983, regulations inappropriately limited the applicability of the Federal lands program by excluding lands containing 

unleased Federal coal beneath State or private surface. Since the court ruling, OSM has been applying the Federal lands 

program to such lands in accordance with the ruling. 
 On May 31, 1989, OSM published in the Federal Register (54 FR 23388) a proposed rule to revise the applicability of 

the Federal lands program and to make certain other changes for clarity and consistency with existing requirements 

concerning the responsibilities of the Bureau of Land Management (BLM). 

 

II. DISCUSSION OF FINAL RULE AND RESPONSE TO PUBLIC COMMENTS 

 

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

OPERATIONS ON FEDERAL LANDS 

 The general requirements for surface coal mining and reclamation operations on Federal lands are described under 30 

CFR part 740. As proposed to conform with current BLM terminology, references to BLM regulations at "43 CFR parts 

3480-3487" are changed to "43 CFR Group 3400." 

 

SECTION 740.4 -- RESPONSIBILITIES 

 The proposed rule also contained editorial and organizational changes to Section 740.4(d) that are not adopted in this 

rulemaking. Section 740.4(d) describes the responsibilities of BLM for exploration on Federal lands where BLM has 

regulatory jurisdiction pursuant to its implementing regulations. The purpose of the proposed changes was to clarify the 

responsibilities of BLM with respect to exploration on Federal lands under the regulations at 43 CFR Group 3400. These 

proposed changes are not adopted at this time, but may be reexamined in light of and in conjunction with proposed 

changes under consideration by BLM to its rules on the same subject. 

 

SECTION 740.11 -- APPLICABILITY 

 Section 740.11 contains the applicability provisions of the Federal lands program. Paragraphs (a) (2) and (3) of the 

September 16, 1983, rule applied the Federal lands program to surface coal mining and reclamation operations on lands 

containing leased Federal coal and on lands where either the coal to be mined or the surface is owned by the United 

States, thereby excluding lands containing non-Federal surface and unleased Federal coal. The District Court in In re: 

Permanent Surface Mining Regulation Litigation (II), Civil Action No. 79-1144 (D.D.C. 1984), ruled that the general 

exclusion from the Federal lands program of surface coal mining operations on private or State-owned surface overlying 

unleased Federal coal was inconsistent with SMCRA. 

 The final applicability section of the Federal lands program provides that upon approval or promulgation of a 

regulatory program for a State, that program and the Federal lands program (30 CFR Chapter VII, Subchapter D) shall 

apply to surface coal mining and reclamation operations taking place on any Federal lands as defined in 30 CFR 700.5, 

and lands (except Indian lands) over leased or unleased Federal minerals. This means that where such operations occur 

on lands where the surface, the minerals, or both, are Federally owned, the Federal lands program and the approved 

regulatory program will apply. The final rule has been changed in response to comments to make this applicability 

explicit. 

 Five comment letters were received concerning the proposed applicability provisions. Two commenters suggested that 

the wording of Section 740.11(a)(2) include a definition of the term "Federal lands" to make clear that it means Federal 

surface and leased or unleased Federal minerals. This rulemaking amends the applicability provision of the Federal lands 

program regulations consistent with the existing definition of Federal lands at 30 CFR Section 700.5. That definition 

defines Federal lands as ". . . any land, including mineral interests, owned by the United States, without regard to how the 

United States acquired ownership of the lands or which agency manages the lands. It does not include Indian lands * * 

*." The definition of Federal lands recommended by the commenters agrees with the existing definition in 30 CFR 700.5 

as Judge Flannery construed it. However, in response to these comments OSM has decided to clarify in the rule language

itself that the Federal lands program applies to lands (except Indian lands) over leased or unleased Federal minerals. 

 One commenter opposed the broadening of the applicability provision to include every mining operation on private 

and State-owned surface overlying Federal coal. The commenter stated that when the District Court for the District of 

Columbia ruled on the applicability of the Federal lands program, it explicitly endorsed an "affected by" test to determine 

the Federal lands program jurisdiction. The commenter said that to apply the Federal lands program in all cases to the 

surface estate over an unleased Federal coal interest that may never be mined or affected by mining activities would not 

serve any useful purpose. The commenter suggested that the language of Section 740.11(a)(2) be modified to apply to 
surface coal mining and reclamation operations on lands where either the surface or mineral interests owned by the 

United States will be directly affected by such operations. 

 The applicability standard adopted by OSM is consistent with the definition of Federal lands in SMCRA section 

701(4) and 30 CFR 700.5, and the requirement in SMCRA section 523(a) that the Federal lands program apply to all 

surface coal mining operations on Federal lands. It is also easy to administer. An "affected by" test would be very difficult 

to administer. A determination that the Federal interest would or would not be affected would have to be made on a 

case-by-case basis, and could be subject to different interpretations. 

 One commenter asked whether it can be assumed that no Federal approval would be required for unleased Federal 

coal under private or State surface and would States having cooperative agreements under section 523(a) of SMCRA to 

regulate surface coal mining operations on Federal lands, only be required to consult with OSM and BLM prior to issuing 

permits to ensure protection of the Federal coal. Another commenter interpreted the proposed language to mean that 

BLM's responsibility is limited to matters related directly to coal recoverability present or future and that cooperative 

agreement states should only be required to consult with BLM and OSM prior to taking permitting actions to ensure 

protection of the Federal coal resource. 

 To conduct surface coal mining operations on private or State surface overlying unleased Federal coal, an applicant is 

required to obtain a permit under the Federal lands program at 30 CFR part 740 from OSM, or the State if there is a 

cooperative agreement which provides for State permitting on such Federal lands. OSM would retain any responsibility 

not delegated to a State under a cooperative agreement. Section 773.13(a)(3)(ii) requires the regulatory authority to 

notify those Federal agencies with an interest in the proposed operation, thus affording BLM the opportunity to review 

and comment on the proposed operation with respect to its responsibilities to ensure protection of the Federal interest. 

BLM may exercise, if necessary, any authority under Federal law which it administers to protect the Federal interest. The 

regulatory authority would normally consult with BLM where specified in a cooperative agreement or to ensure 

protection of the Federal interest. Also, since many State laws cover such split-estate lands and do require the 

concurrence of the mineral owner, in some cases Federal approval may be required. The regulatory authority in such 

cases would consult with BLM in accordance with applicable State law. 

 Another commenter stated that the proposed rules do not address processing procedures for permit and revision 

applications on Federal lands in States with cooperative agreements where the surface is non-Federal and the Federal coal 

is unleased. The commenter said that the current rules detail procedures only for leased Federal coal and/or Federal 

surface. 

 The Federal lands program at 30 CFR Part 740 applies to unleased coal under non-Federal surface. The applicable 

permit processing requirements of Section 740.13 apply in such cases just as for any other Federal lands. In States with 

cooperative agreements, the permit is processed by the State. In States with no cooperative agreement or with a Federal 

program, OSM issues the permit. 

 

III. PROCEDURAL MATTERS 

 

Federal Paperwork Reduction Act 

 This rule does not contain collections of information which would require approval by the Office of Management and 

Budget under 44 U.S.C. 3501 et seq. 

 

Executive Order 12291 and Regulatory Flexibility Act 

 The DOI has determined that this document is not a major rule under the criteria of Executive Order 12291 (February 

17, 1981) and certifies that it would not have a significant economic effect on a substantial number of small entities under 

the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The rule does not distinguish between small and large entities. These 

determinations are based on the findings that the regulatory additions in the rule would not change costs to industry or to 

the Federal, State, or local governments. Furthermore, the rule produces no adverse effects on competition, employment, 

investment, productivity, innovation, or the ability of United States enterprises to compete with foreign-based enterprises 

in domestic or export markets. 

 

National Environmental Policy Act 

 The proposed rule is part of the Federal lands program, the promulgation of which is exempt under section 702(d) of 
SMCRA (30 U.S.C. 1292(d)), from compliance with section 102(2)(C) of the National Environmental Policy Act of 

1969 (42 U.S.C. 4332(2)(C)). 

 

Author 

 The principal author of this rule is Dr. Fred Block, Branch of Federal and Indian Programs, Office of Surface Mining 

Reclamation and Enforcement, 1951 Constitution Avenue NW., Washington, DC 20240; Telephone: 202-343-1864 

(Commercial or FTS). 

 

LIST OF SUBJECTS IN 30 CFR PART 740 

 Coal mining, Public lands, Mineral resources, Reporting requirements, Surface mining, Underground mining. 

 Accordingly, 30 CFR Part 740 is amended as set forth below. 

Dated: February 5, 1990. 

Dave O'Neal, Assistant Secretary, Land and Minerals Management. 

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

OPERATIONS ON FEDERAL LANDS 

 1. The authority citation for part 740 is revised to read as follows: 

 Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq. 

 2. In 30 CFR Part 740, remove "43 CFR Parts 3480-3487" and "43 CFR Part 3400" and replace them with "43 CFR 

Group 3400" everywhere they appear except in Section 740.15. 

 3. In Section 740.11, add "and" at the end of paragraph (a)(1), remove paragraph (a)(3), and revise paragraph (a)(2) 

to read as follows: 

SECTION 740.11 - APPLICABILITY. 

(a) * * * 

(2) Surface coal mining and reclamation operations taking place on any Federal lands as defined in Section

700.5 of this chapter, and lands (except Indian lands) over leased or unleased Federal minerals. 

 

* * * * * 

SECTION 740.15 [Amended] 

 4. In Section 740.15, paragraph (d)(1) is amended by removing "43 CFR Parts 3480-3487 and 43 CFR Part 3400" 

and replacing it with "43 CFR Group 3400". 

[FR Doc. 90-5614 Filed 3-12-90; 8:45 am] 

BILLING CODE 4310-05-M