1. Purpose. This Directive provides corrective action procedures that apply when the 

Office of Surface Mining Reclamation and Enforcement (OSM) identifies problems with a 

state’s or tribe’s approved regulatory program, or the state’s or tribe’s actions under that 

program, that could, if left unaddressed, result in a failure by the state or tribe to effectively 

implement, administer, enforce, or maintain its approved regulatory program. The Directive also 

provides transparency to the corrective action process. 

2. Summary of Changes. This Directive reinstates, revises, and renames previous 

Directive REG-23, “Development and Implementation of Actions Plans,” which was rescinded 

on July 26, 1996, in Transmittal Number 846, “Rescission of Directives.” This Directive, 

“Corrective Actions for Regulatory Program Problems and Action Plans,” includes strategies to 

correct Regulatory Program Problems and procedures to follow when a state or tribe fails to meet 

the terms of an Action Plan. In addition, the Directive clarifies and delineates OSM’s roles and 

responsibilities in reporting and correcting Regulatory Program Problems. 

3. Definitions. 

a. Action Plan. A detailed schedule of specific measures to be taken to resolve 

Regulatory Program Problems identified during OSM’s oversight of a state or tribal regulatory 

program. 

b. Regulatory Program Problem. An issue identified during OSM’s oversight of a 

state or tribal regulatory program that could result in a failure by the state or tribe to effectively 

implement, administer, enforce, or maintain all or any portion of its approved regulatory 

program, including a state’s or tribe’s failure to adopt and implement program amendments that 

are required under 30 CFR Part 732 and 30 CFR Subchapter T. 

4. Policy. 

States and tribes with approved regulatory programs are required to implement, administer, 

enforce, and maintain those programs in accordance with the Surface Mining Control and 

Reclamation Act of 1977 (SMCRA), OSM’s implementing regulations, and the provisions of the 

approved program. This Directive provides procedures for Field Office Directors (FODs) to 

follow when they identify Regulatory Program Problems, as defined above. The principal focus 

U.S. DEPARTMENT OF THE INTERIOR

OFFICE OF SURFACE MINING 

RECLAMATION AND ENFORCEMENT

DIRECTIVES 

SYSTEM

Subject Code:

REG-23

Transmittal Number:

966

Date:

January 31, 2011

Subject: Corrective Actions for Regulatory Program Problems and Action Plans

Approval: Joseph G. Pizarchik Title: Director
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should be on issue resolution and not on process. FODs must exercise prudent judgment and 

consider all pertinent factors associated with bringing an issue to resolution when determining 

reasonable and practical milestones and timing for Action Plans. FODs should use these 

procedures to make every effort to resolve Regulatory Program Problems in the same Evaluation 

Year as they are identified or as soon as practical thereafter. 

To document progress in resolving Regulatory Program Problems, FODs will track and report 

these problems in Annual Evaluation Reports in accordance with guidance in Directive REG-8, 

“Oversight of State and Tribal Regulatory Programs.” For those Regulatory Program Problems 

that are unresolved, or expected to be unresolved, for more than 180 days from the date of 

notification to the state or tribe, FODs will prepare Action Plans that state the nature of the issue 

and the selected resolution method and provide a timetable for implementation of the resolution 

method. The Action Plans will be attached to the Performance Agreement/Evaluation Plans for 

each state or tribe. 

Finally, this Directive provides the procedures to follow when a state or tribe fails to correct an 

identified Regulatory Program Problem or comply with an Action Plan.

5. Responsibilities.

a. Director. 

 

 When a state or tribe fails to complete the terms of an Action Plan, the 

Director will approve or deny the Regional Director’s (RD’s) recommendation that the Director 

initiate the process for substituting direct Federal enforcement for all or part of the state or tribal 

program or withdrawing approval of the state or tribal program, in whole or in part, following the 

procedures of 30 CFR Part 733. 

 

b. Regional Directors. 

(1) Monitor the progress in resolving Regulatory Program Problems. 

(2) Provide appropriate available technical assistance to the Field Office and 

the state or tribe in the resolution of Regulatory Program Problems, upon request of the FOD or 

state or tribal regulatory authority. 

(3) Provide any guidance or assistance necessary to resolve Regulatory 

Program Problems for which the Field Office and the state or tribe are unable to agree upon a 

course of action. 

(4) Review cases where a state or tribe has failed to comply with an Action 

Plan. Modify the terms of the current Action Plan at the RD’s discretion. 

(5) Recommend that the Director initiate the process for substituting direct 

Federal enforcement for all or part of the state or tribal program or withdrawing approval of the 

state or tribal program, in whole or in part, where a state’s or tribe’s failure to implement an
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Action Plan provides reason to believe the state or tribe is not effectively implementing, 

administering, maintaining, or enforcing any part of its regulatory program. 

c. Field Office Directors. 

(1) Determine if Regulatory Program Problems exist. 

(2) Explore solutions and compliance strategies in consultation with the state 

or tribe if a Regulatory Program Problem is determined to exist. 

(3) Develop a written Action Plan if the identified Regulatory Program 

Problems remain unresolved or are expected to remain unresolved for more than 180 days from 

the date a problem is reported to a state or tribe. The plan should set out the identified issues and 

the selected solutions and provide a timetable for implementing the solutions with interim steps, 

if necessary. Provide an opportunity to the state or tribe to review and comment on the proposed 

Action Plan. 

(4) List Regulatory Program Problems and Action Plans in Annual Evaluation 

Reports as provided for in REG-8 and include a copy of the Action Plan in the Performance 

Agreement/Evaluation Plan for the state or tribe. Any outstanding Regulatory Program 

Problems predating this directive will be listed in the Annual Evaluation Reports for Evaluation 

Year 2011 as provided for in REG-8 and attached to the Performance Agreement/Evaluation 

Plans for each subsequent evaluation year until final resolution.

(5) Monitor Action Plan implementation, tracking all dates, providing the 

state or tribe with reminder notices of upcoming target dates, and discussing implementation 

progress and problems with the state or tribe on a routine basis. 

(6) Coordinate assistance efforts where the Action Plan requires OSM to 

provide technical or other assistance to the state or tribe. 

(7) Establish and maintain Action Plan files. 

(8) Notify the RD when a state or tribe fails to comply with the terms of any 

Action Plan. 

6. Procedures. 

a. Compliance Strategies. When a FOD identifies a Regulatory Program Problem, 

one or more of the following strategies may be used to correct it. The FODs are not, however, 

limited to the suggestions in this list and are encouraged to find innovative solutions to solve 

Regulatory Program Problems, where appropriate.

 Engage in informal dialogue with the state or tribe. 

 Suggest changes in state or tribal procedures. 
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 Suggest changes in the state’s or tribe’s use of resources or training staff. 

 Provide technical assistance, if available. 

 Increase the number of oversight inspections. 

 Identify other workable state or tribal models and practices to states or 

tribes with problems in specific areas. 

 Conduct a formal audit of state or tribal permitting and compliance 

activities. 

 Conduct targeted intense special studies of problem areas using technical 

experts. 

 Conduct public fact-finding hearings on program deficiencies. 

 Form OSM inspection teams that are available to supplement existing 

inspection resources in states or tribes with program problems. 

 Track problem categories of cases more closely to determine if a systemic 

problem exists. 

b. Regulatory Program Problem Resolution. Whenever the FOD identifies a 

problem that could ultimately constitute a reason to believe that the state or tribe is not 

effectively implementing, administering, enforcing, or maintaining all or any portion of its 

approved state or tribal regulatory program, he or she must develop a strategy to correct the 

problem expeditiously. However, if the Regulatory Program Problem cannot be, or is not 

expected to be, resolved within 180 days after identification by the FOD, then an Action Plan is 

required. In no case should a Regulatory Program Problem go unresolved for more than 180 

days without being the subject of an Action Plan. 

The FOD, in consultation with the state or tribe, will develop the Action Plan. If the state or 

tribe does not accept the validity of the Regulatory Program Problem or will not work with OSM 

on an Action Plan, then the FOD will develop the appropriate Action Plan and will elevate the 

issue to the RD. The RD may direct the FOD to implement the Action Plan and/or recommend 

appropriate 30 CFR Part 733 actions to the Director.

c. Action Plan Content. Action Plans must be written with enough specificity to 

minimize misunderstandings. Corrective actions must be tailored to address the apparent cause 

of the problem. Plans must identify any necessary technical or other assistance to be provided by 

OSM, as well as the remedial measures to be taken by the state or tribe. Plans must include the 

following elements: 
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(1) Action Plan ID: 2 digit state or tribe Code + Evaluation Year Action Plan 

Started + 3 digit Sequence Number; for example, CA-2010-001 (this unique identification for 

each Action Plan will be reported in the Annual Evaluation Report in accordance with REG-8); 

(2) A short title for the problem and a clear, concise description of the 

problem; 

(3) Explicit criteria for determining when complete resolution has been 

achieved; 

(4) An orderly sequence of actions to be taken to remedy the problem; and 

(5) A schedule for the completion of each action in the sequence. Time 

frames should be realistic, but they must also be designed to achieve an expeditious resolution. 

d. Implementation, monitoring, and modification. The FOD must establish 

procedures to monitor Action Plan milestones and schedules. The FOD will closely coordinate 

with the state or tribe on milestones and schedules in the Action Plans and notify the RD 

promptly when a state or tribe fails to comply with the terms or milestones/schedule of an Action 

Plan. In consultation with the state or tribe, Action Plans may be revised by the FOD. 

e. State’s or Tribe’s failure to comply with Action Plans. If the state or tribe has not 

met the terms of the Action Plan and all strategies have failed to correct the Regulatory Program 

Problem, then the FOD must promptly notify the RD. The RD will review the Action Plan, 

recommendations from the FOD, and the efforts of the state or tribe to correct the Regulatory 

Program Problem and will determine the appropriate course of action, which may require 

modification of the Action Plan or initiation of a 30 CFR Part 733 action. If the RD chooses not 

to modify the Action Plan, and determines that the state’s or tribe’s failure to implement the 

Action Plan provides him or her with reason to believe the state or tribe is not effectively 

implementing, administering, maintaining, or enforcing all or any portion of its approved state or 

tribal program, the RD must promptly notify the Director so that he or she can consider 

appropriate actions in accordance with 30 CFR Part 733. 

f. Filing requirements. The Field Office must maintain a separate file for each 

Action Plan. Files must contain all documents relating to development, implementation, and 

completion of the plan and, at a minimum, must be maintained in active status until the program 

problem is finally resolved. File maintenance and disposition must be in accordance with 

Directive INF-1. 

7. Reporting Requirements.

The status of all outstanding Regulatory Program Problems will be reported in accordance with 

Directive REG-8 procedures, and Action Plans will be attached to Performance 

Agreement/Evaluation Plans. Unresolved Regulatory Program Problems predating this directive 

must be reported in accordance with Directive REG-8, and any related Action Plans will be 

attached to Performance Agreement/Evaluation Plans for each subsequent evaluation year until 

final resolution. All Regulatory Program Problems will be reported in Annual Evaluation 
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Reports in accordance with Directive REG-8 until all terms of the plan have been completed 

successfully. 

8. Effect on Other Documents. None. 

9. References. 

a. 30 CFR Part 732. 

b. 30 CFR Part 733. 

c. Directive INF-1, “OSM Records Management.”

d. Directive REG-8, “Oversight of State and Tribal Regulatory Programs.”

10. Effective Date. Upon issuance. 

11. Distribution. Electronically. 

12. Appendices. None. 

Contact: Chief, Division of Regulatory Support. Telephone: (202) 208-2866.