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U·-S· DEPARTMENT OF THE INTERIOH SublletNWilw: 

REG- 2 OFFICE OF SURFACE MININGt:TranmU....,_~n.~':"':':N~Wil-:-ber-: ---i 

RECLAMATION AND ENFORCEMENT 

649 

DIRECTIVES SYSTEM DauDEC 7 1990 

Subject: 

Director 

II / t 

1. Purpose. This directive establishes the policy of the Office 

of surface Mining Reclamation and Enforcement (OSM) for 

conducting and documenting the non-delegable responsibilities for 

the Federal lands review under section 522(b) of the Surface 

Mining Control and Reclamation Act (SMCRA). 

2. Summary. This directive consolidates agency policy and 

procedures for conducting and documenting the results of the 

review of Federal lands, required under section 522(b) of SMCRA, 

to determine whether they are unsuitable for all or certain types of surface coal mining operations. 

3. Definitions. 

a. Federal permit. A permit issued under SMCRA by OSM in 

its capacity as the regulatory authority on Federal lands (in 

States with limited or no cooperative agreements to regulate 

mining on such lands) or under a Federal program for a State. 

For this directive, the term "Federal permit" also includes 

permits issued by OSM for operations on Federal lands where OSM 

and the State have dual permitting responsibilities. 

b. Federal permitting entity CFPEl. The OSM organizational unit with responsibility for receiving and processing 

applications and other materials related to Federal permits, 

i.e., the Division of Federal Programs in the Western Support 

Center in Denver or the Division of Tennessee Permitting in the 

Knoxville Field Office (KFO). 

c. Mining plan means the plan for mining leased Federal coal 

required by the Mineral Leasing Act (MLA). 

d. Mining plan decision document means the decision document 

prepared and submitted to the Secretary under 30 CFR 746.13, 

recommending approval, disapproval, or conditional approval of 

the mining plan. 

e. Permit application package (PAP) means a proposal to 

conduct surface coal mining operations on Federal lands, 

including an application for a permit, permit revision or permit 

renewal, all the information required by SMCRA, 30 CFR Chapter 

VII, Subchapter D, the applicable State program, any applicable 

OSM/103 7122186 
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cooperative agreement and all other applicable laws and 

regulations including, with respect to leased Federal coal, the 

MLA and its implementing regulations. 

f. State-Federal Cooperative Agreement. The formal document 

executed pursuant to section 523(c) of SMCRA and 30 CFR Part 745, 

and signed by the Secretary of the Interior and the Governor of a 

state to provide for state regulation of surface coal mining 

operations on Federal lands. 

4. Policy/Procedures. 

a. Background/Policy. Section 522(b) of SMCRA requires a 

review of Federal lands to determine if areas of these lands 

should be designated as unsuitable for all or certain types of 

surface coal mining operations, applying the standards of 

sections 522(a) (2) and (a) (3). Section 522(a) (2) requires that 

lands determined to be economically or technologically 

unreclaimable be designated unsuitable for surface coal mining 

operations. Section 522(a) (3) requires a review of proposed 

surface coal mining operations to determine whether they would be 

incompatible with land use plans, or affect fragile and historic 

lands, renewable resource lands, or natural hazard lands. 

Section 523(a) of SMCRA provides that the Secretary shall 

continue to be responsible for designation of Federal lands as 

unsuitable for mining in accordance with section 522(b) even 

where there is a State-Federal cooperative agreement. The 522(b) 

Federal lands review process applies to all coal mining 

situations where Federal lands are involved, including Federal 

surface with private coal, and areas where other Federal minerals 

are found and coal mining operations affect the surface of the 

area. 

In 1978, the Secretary of the Interior assigned the Bureau of 

Land Management (BLM) responsibility for the 522(b) Federal lands 

review for all lands containing Federal mineral or Federal 

surface. The unsuitability criteria (43 CFR Group 3400) were 

identified through a joint effort of the bureaus within the 

Department of the Interior involved in the Federal coal program 

and were first promulgated July 19, 1979 (44 FR 42584). The 1979 

rulemaking concerned with the unsuitability criteria concluded 

that the reclaimability criterion (section 522(a)(2) of SMCRA) is 

most appropriately applied at the surface mining permit 

application stage and that finding was reaffirmed by the 

Secretary in 1986 after an Interagency Task Force review. 

A July 30, 1982, rulemaking for the Federal coal management 

program (47 FR 33114) exempted all existing leases from the 

unsuitability screening in the BLM land use planning process 

described in 43 CFR Group 3400. While the 1982 rulemaking 

exempted existing leases from the application of the 

unsuitability criteria, it did not exempt the development of 

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Federal coal leases from the statutory environmental protection 

requirements which are applied by OSM or the States at the time 

of the mine permit application review and which form the basis of 

OSM's 522(b) finding (47 FR 33131). 

OSM has the responsibility for the Federal lands review for 

Federal coal leases issued before July 19, 1979, the date when 

the unsuitability criteria were first adopted. OSM conducts the 

Federal lands review when surface coal mining operations on these 

leases are proposed, applying the criteria in 30 CFR Part 762. 

For Federal coal proposed for leasing after July 19, 1979, BLM 

applies the unsuitability criteria in 43 CFR Group 3400 to 

Federal lands. BLM has entered into a Memorandum of Agreement 

with the Forest service for Federal lands review on National 

Forest System lands. OSM makes the determination on 

reclaimability at the time of permit application review and makes 

the final 522(b) determination using information submitted with 

the reclamation plan, the regulatory authority's finding on 

reclaimability and any other information available from any BLM, 

Forest Service, or other Federal land management agency (FLMA) 

review. 

b. Procedures/Responsibilities. 

Upon receipt of a PAP, the FPE will: 

1. For surface coal mining operations proposed on 

lands containing Federal coal leased before July 19, 1979: 

(a) Review the PAP to determine what additional 

information is needed to ensure compliance with the non-delegable 

responsibilities for the Federal lands review under section 

522(b) of SMCRA. 

(b) Contact the FLMA, if applicable, to request 

information pertinent to the Federal lands review. 

(c) Apply the criteria in 30 CFR Part 762 and 

review the regulatory authority's finding on reclaimability in 

the findings for SMCRA permit approval, before making the 522(b) 

determination and notifying the regulatory authority of the 

determination in writing. 

2. For all other surface coal mining operations 

proposed on Federal lands: 

(a) Review the PAP to determine what additional 

information is needed to ensure compliance with the non-delegable responsibilities for the Federal lands review under section 

522(b) of SMCRA. 

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and request a 

If no Federal 

to assist BLM 

(b) Contact BLM and the FLMA, if other than BLM, 

summary of information on the Federal lands review. 

lands review has been conducted, the FPE may offer 

in conducting the review. 

(c) Review any material submitted by BLM or the 

FLMA concerning the conduct of the Federal lands review and the 

regulatory authority's finding on reclaimability in the findings 

for SMCRA permit approval before making the 522(b) determination 

and notifying the regulatory authority of the determination in 

writing. 

3. For leased Federal coal, include the 522(b) 

determination in the recommendation memorandum from the FPE to 

the Director, OSM in the mining plan decision document, in 

accordance with Directive REG-31. 

4. Where OSM determines, as a result of the 522(b) 

Federal lands review, that lands are unsuitable for all or 

certain types of surface coal mining operations, prepare a 

Takings Implication Assessment in compliance with Executive Order 

12630 "Governmental Actions and Interference with 

Constitutionally Protected Property Rights" and the Attorney 

General's Guidelines for the Evaluation of Risk and Avoidance of 

Unanticipated Takings. 

5. Reporting Requirements. None. 

6. Effect on Other Documents. None. 

7. References. 

a. Directive REG-31, "Preparation of Mining Plan Decision 

Documents." 

b. Directive REG-34, "Processing Applications for Federal 

Permits." 

c. 43 CFR Group 3400. 

d. Executive Order 12630 "Governmental Actions and 

Interference with Constitutionally Protected Property Rights" (53 

FR 8859, March 18, 1988) and the Attorney General's Guidelines 

for the Evaluation of Risk and Avoidance of Unanticipated Takings issued June 30, 1988. 

8. Effective Date. Upon issuance. 

9. Contact. Branch of Federal and Indian Programs, Division of 

Regulatory Programs, (202) 208-2564 or FTS 268-2564. 

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10. Keywords. Federal lands, Unsuitability, Section 522(b) of 

SMCRA. 

11. Appendices. None. 

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